Limitation on Liens. The Company covenants that the Company and its Subsidiaries will not create or incur any Lien on any property of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 2 contracts

Samples: Second Supplemental Indenture (WGL Holdings Inc), First Supplemental Indenture (WGL Holdings Inc)

Limitation on Liens. (a) The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, directly or ~~incur~~ indirectly, create, Incur or suffer to exist any Lien (other than Permitted Liens) on any asset or property of the Company or such Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income therefrom, that secures any Obligations of ~~its Subsidiaries~~the Company or such Restricted Subsidiary, ~~whether now owned~~ unless (i) in the case of any asset or ~~hereafter acquired~~property not constituting, ~~in order~~ or required to ~~secure any Indebtedness~~be pledged as, ~~without effectively providing that~~ Collateral pursuant to the terms of this Indenture, the Security Agreement and the mortgages, the Notes ~~shall be~~ or the applicable Guarantee are equally and ratably secured ~~until~~ with or prior to such Obligation with a Lien on the same assets of the Company or such Restricted Subsidiary, as the case may be, pursuant to appropriate security documentation and subject to the terms and provisions of the Intercreditor Agreement and (ii) in the case of any asset or property constituting, or required to be pledged as, Collateral pursuant to the terms of this Indenture, the Security Agreement and the mortgages, after giving pro forma effect thereto and to the Incurrence of related Indebtedness and the use of proceeds therefrom, the Secured Leverage Ratio is positive and less than 3.5 to 1 and Obligations secured by such Lien constitute Additional Obligations subject to the terms of the Intercreditor Agreement (it being understood Additional Notes shall only be issued in compliance with the terms of this clause (ii)). (b) Section 4.06(a)(i) shall not require the Company or any Restricted Subsidiary of the Company to secure the Notes if the relevant Lien consists of a Permitted Lien. Any Lien which is granted to secure the Notes or such Guarantee under Section 4.06(a)(i) shall be automatically released and discharged at the same time as the release of the Lien (other than a release following enforcement of remedies in respect of such ~~Indebtedness is no longer~~ Lien or the Obligations secured by such Lien~~, except: (a~~) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that ~~based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature~~ gave rise to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given obligation to secure the ~~payment of the purchase price incurred in connection with the acquisition (including acquisition through merger~~ Notes or ~~consolidation) of any property, including Capital Lease transactions in connection with any~~ such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (iGuarantee under Section 4.06(a), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 2 contracts

Samples: Indenture (Cogent Communications Holdings, Inc.), Indenture

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Subsidiary to, create, assume or ~~incur~~ suffer to be created, assumed or incurred or to exist any Lien on upon any property or assets of the ~~Company~~ Borrower or any ~~of its Subsidiaries,~~ Subsidiary (whether now owned or hereafter acquired~~, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~) other than: (a) Liens ~~existing as of~~ securing taxes, assessments or other governmental charges to the ~~Issue Date of the Notes~~extent non-payment thereof is permitted by Section 5.02(a); (b) Liens ~~granted after~~ incurred in the ~~Issue Date~~ ordinary course of business in connection with the ~~Notes created in favor of the Securityholders of the Notes~~workmen's compensation, unemployment insurance and other social security obligations; (c) Liens ~~securing Indebtedness~~ incurred in the ordinary course of business but not incurred in connection with the borrowing of money, the incurrence of Derivatives Obligations, the obtaining of advances or the payment of the deferred purchase price of any property or assets, including, without limitation, Liens securing: (i) claims of mechanics, workmen, materialmen or other similar persons in respect of obligations not yet due or being contested in good faith by appropriate proceedings, or (ii) the performance of bids, tenders or contracts which ~~are incurred~~ in the aggregate do not detract in any material respect from the value of the property or assets of the Borrower or any Subsidiary or impair in any material respect the use thereof in the operation of the business of the Borrower or any Subsidiary, or (iii) leases (including equipment leases), public or statutory obligations (other than the obligations referred to ~~extend~~in paragraph (a) above), ~~renew~~ surety and appeal bonds or ~~refinance Indebtedness which is~~ other similar obligations; provided that the aggregate obligations secured by such Liens ~~permitted to be incurred under this Section 3.1~~shall not exceed $15,000,000 until the Existing Credit Facility Expiration Date, and thereafter $25,000,000; (d) Liens ~~created in substitution~~ existing as of ~~or as replacements for any Lien permitted by clause (a), (b) or (c)~~ the date of this ~~Section 3.1~~Agreement; provided that ~~based on a good faith determination of the Company,~~ no such Lien shall extend to any property other than the property ~~encumbered under any~~ as to which such ~~substitute~~ Lien was in effect as of such date and the Debt secured by such Lien shall not be increased, renewed or ~~replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~extended; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given property to secure the payment of all or any part of the purchase price thereof or to secure any Debt, incurred ~~in connection with~~ prior to, at the time of, or within 90 days after the acquisition ~~(including acquisition through merger or consolidation)~~ of ~~any~~ such property, ~~including Capital Lease transactions~~ for the purpose of financing all or any part of the purchase price of such property; provided (i) that in ~~connection with~~ no event shall the amount of Debt secured by any such ~~acquisition, and (ii) Liens existing on any property~~ Lien exceed 75% of the purchase price or fair market value at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property subject to ~~which they attach; provided~~ such Lien, whichever is less, (ii) that ~~with respect~~ any such Lien does not extend to ~~clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to~~ property other than the property ~~acquired~~ purchased or ~~purchased~~ financed in connection with which such Lien was created and (iii) that the aggregate outstanding principal amount of all such Debt shall not exceed $15,000,000 until the Existing Credit Facility Expiration Date, and thereafter $25,000,000; (f) Liens on property or assets of any ~~improvements then or thereafter placed thereon and any proceeds thereof~~Subsidiary operating outside the United States securing Debt of such Subsidiary; (g) ~~pre-existing~~ Liens on fixed assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges Debt not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, otherwise permitted; provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, that the aggregate outstanding principal amount of ~~Indebtedness incurred after the Issue Date of the Notes and~~ all Debt secured by Liens ~~not~~ permitted ~~under~~ by this ~~Section 3.1 does~~ paragraph and by paragraphs (d) and (e) above shall not exceed the greater of (i) 15$4,000,000 or (ii) 25% of the excess of consolidated net fixed assets over net fixed assets subject to Liens permitted by paragraph (f) above; (h) Liens on cash and cash equivalents securing Derivatives Obligations, provided that the aggregate amount of cash and cash equivalents subject to such Liens may at no time exceed $10,000,000; and (i) Liens not otherwise permitted by the foregoing clauses of this Section 5.06 securing Debt in an aggregate principal amount at any time outstanding not to exceed 5% of Consolidated Net ~~Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Worth.

Appears in 2 contracts

Samples: Credit Agreement (Wiley John & Sons Inc), Credit Agreement (Wiley John & Sons Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ the Notes and the Guarantees; (dC) Liens ~~created in substitution of or as replacements for any Lien permitted by clause (a)~~securing borrowings under the Credit Agreement, (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature whether incurred pursuant to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and clause (ii) ~~Liens existing on~~ of the definition of "Permitted Indebtedness" or any ~~property at the time of acquisition~~ other clause thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely pursuant to the provisions of Section 4.12) including any additional Obligations thereunder (which Liens may extend to all property now owned or hereafter acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries~~, provided the Liens are limited to the property financed and the related real estate;~~ ); (wD) Liens ~~incurred in~~ of the ~~creation~~ Company or ~~existence~~ a Wholly Owned Restricted Subsidiary of ~~leases made, or existing~~ the Company on ~~property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part,~~ assets of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date Restricted Subsidiary of the ~~Notes and~~ Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens not~~ a Lien permitted under this Section ~~3.1 does~~ 4.18 and which Indebtedness has been incurred in accordance with the provisions of Section 4.12; provided, however, that such Liens (x) are no less favorable to the Holders and are not ~~exceed~~ more favorable to the ~~greater of (i) 15% of Consolidated Net Worth calculated as~~ lienholders with respect to such Liens than the Liens in respect of the ~~date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.~~Indebtedness be-

Appears in 2 contracts

Samples: Indenture (Appliance Warehouse of America Inc), Indenture (Coinmach Corp)

Appears in 2 contracts

Samples: Credit Agreement (Accolade, Inc.), Credit Agreement (Accolade, Inc.)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any of its Restricted Subsidiaries that are Guarantors to, directly or ~~incur~~ indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness on any asset or property of the Company or any ~~of its Subsidiaries~~Restricted Subsidiary, ~~whether now owned~~ or ~~hereafter acquired~~any income or profits therefrom, ~~in order~~ or assign or convey any right to ~~secure any Indebtedness~~receive income therefrom, ~~without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~unless: (a1) ~~Liens existing as~~ in the case of ~~the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c)~~ Liens securing Subordinated Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the ~~property encumbered under any~~ Notes are secured by a Lien on such ~~substitute~~ property, assets or ~~replacement Lien~~ proceeds of the Company that is ~~substantially similar~~ senior in ~~nature~~ priority to ~~the property encumbered by the otherwise permitted Lien which is being replaced~~such Liens; (e2) in the case of Liens on securing Subordinated Indebtedness of any ~~assets~~Guarantor, ~~created solely to secure obligations incurred to finance~~ the ~~refurbishment, improvement or construction~~ Guarantee of such ~~asset~~Guarantor is secured by a Lien on such property, ~~which obligations are incurred no later than 12 months after completion~~ assets or proceeds of such ~~refurbishment~~Guarantor that is senior in priority to such Liens; (3) in the case of Liens securing Indebtedness (other than Subordinated Indebtedness) of the Company, ~~improvement~~ the Notes are equally and ratably secured by a Lien on such property, assets or ~~construction~~proceeds of the Company; and (4) in the case of Liens securing Indebtedness (other than Subordinated Indebtedness) of any Guarantor, ~~and all renewals, extensions, refinancings, replacements or refundings~~ the Guarantee of such ~~obligations;~~Guarantor is equally and ratably secured by a Lien on such property, assets or proceeds of such Guarantor. The foregoing shall not apply to: (i) Liens ~~given~~ existing on the Issue Date to ~~secure~~ the ~~payment of~~ extent and in the ~~purchase price incurred~~ manner such Liens are in ~~connection with~~ effect on the ~~acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and~~ Issue Date; (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date all of the Notes and the related Guarantees and all of the Notes issued in exchange therefor pursuant to the Registration Rights Agreement (including Notes issued in exchange for Additional Notes) and secured by a Lien (in each case in accordance with the terms of this Indenture) and the related Guarantees; (iii) Liens ~~not~~ securing Indebtedness permitted ~~under this Section 3.1 does not exceed the greater of~~ to be incurred pursuant to clauses (i1) ~~15% of Consolidated Net Worth calculated as~~ and (5) of the ~~date~~ second paragraph of ~~the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.~~Section 4.9 ; or

Appears in 2 contracts

Samples: Indenture (Nuveen Investments Holdings, Inc.), Indenture (Nuveen Investments Holdings, Inc.)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~Property (including, but not limited to, the Collateral), whether now owned or hereafter acquired; provided, ~~in order to secure any Indebtedness~~however, ~~without effectively providing~~ that the ~~Notes~~ foregoing restriction and limitation shall ~~be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~not apply to the following Liens: (a) Liens ~~existing as of~~ created under the ~~Issue Date of the Notes~~Collateral Documents; (b) Liens ~~granted after the Issue Date~~ existing as of the ~~Notes created in favor of the Securityholders of the Notes~~date hereof and reflected on Schedule 8.11 hereto; (c) Liens ~~securing Indebtedness which are incurred~~ existing on property at the time acquired by the Borrower or any Restricted Subsidiary thereof or existing on the property of a corporation at the time it becomes a Restricted Subsidiary, or placed upon property within 120 days after the date of acquisition thereof by the Borrower or any Restricted Subsidiary to ~~extend~~secure a portion of the purchase price thereof, ~~renew~~ but only if (i) such Lien shall attach solely to the property acquired, purchased or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~constructed and (ii) such Lien does not exceed the lesser of the fair market value or cost of such property; (d) Liens ~~created in substitution~~ constituting renewals, extensions or refundings of ~~or as replacements for any Lien~~ Liens permitted by clause ~~(a),~~ (b) or (c) ~~of this Section 3.1;~~ above, provided that ~~based on a good faith determination~~ the principal amount of the ~~Company, the property encumbered under~~ Indebtedness secured by any such ~~substitute~~ new Lien does not exceed the principal amount of the Indebtedness being renewed, extended or ~~replacement~~ refunded at the time of renewal, extension or refunding thereof and that such new Lien ~~is substantially similar in nature~~ attaches only to the same property ~~encumbered by the otherwise permitted Lien which is being replaced~~theretofore subject to such earlier Lien; (e) Liens ~~on any assets~~securing taxes, ~~created solely to secure obligations incurred to finance~~ assessments or governmental charges or levies, or the ~~refurbishment~~claims or demands of materialmen, ~~improvement or construction of such asset~~mechanics, ~~which obligations are incurred no later than 12 months after completion of such refurbishment~~carriers, ~~improvement or construction~~workmen, repairmen, warehousemen, landlords and ~~all renewals~~other like persons, ~~extensions, refinancings, replacements or refundings of such obligations~~provided that payment thereof is not at the time required by Section 8.3 hereof; (if) other Liens ~~given~~ incidental to ~~secure~~ the ~~payment~~ conduct of its business or the ~~purchase price~~ ownership of its property and assets when not incurred in connection with the ~~acquisition (including acquisition through merger~~ borrowing of money or ~~consolidation)~~ the obtaining of ~~any property, including Capital Lease transactions in connection with any such acquisition~~advances of credit, and ~~(ii) Liens existing on any property at~~ which do not in the ~~time of acquisition thereof or at~~ aggregate materially detract from the ~~time of acquisition by the Company or any~~ value of its ~~Subsidiaries~~ property or assets, or materially impair the use thereof in the operation of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofits business; (g) ~~pre-existing~~ attachment, judgment and other similar Liens arising in connection with court proceedings, provided that (i) execution or other enforcement of such Liens is effectively stayed, (ii) the claims secured thereby are being actively contested in good faith by appropriate proceedings, (iii) adequate reserves in conformity with GAAP have been provided on ~~assets acquired after~~ the ~~Issue Date~~ books of the ~~Notes~~Borrower or such Restricted Subsidiary and (iv) the aggregate amount of the liabilities of the Borrower and all Restricted Subsidiaries so secured, including interest and penalties thereon, shall not be in excess of $100,000 at any one time outstanding; (h) Liens ~~in favor~~ on property of a Restricted Subsidiary of the ~~Company~~ Borrower to secure obligations of such Restricted Subsidiary to the Borrower or ~~any of its Subsidiaries;~~to another Restricted Subsidiary; and (i) ~~purchase money~~ Liens ~~or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business~~ granted to secure the Fixed Asset Financing, provided that such Liens (x) only extend to the fixed assets acquired with the proceeds of such Fixed Asset Financing, (y) only secure the original purchase price of such ~~property~~ fixed assets, as reduced by repayments thereon, and (z) do not extend to or ~~to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on~~ cover any ~~property in favor~~ other Property of the ~~United States of America~~ Borrower or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesSubsidiary.

Appears in 2 contracts

Samples: Revolving Credit Agreement (World Acceptance Corp), Revolving Credit Agreement (World Acceptance Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after~~ securing Indebtedness and other Obligations under Credit Facilities in an aggregate amount not to exceed the ~~Issue Date~~ amount permitted to be incurred pursuant to clause (2) of the ~~Notes created in favor~~ definition of ~~the Securityholders of the Notes~~“Permitted Indebtedness”; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the ~~refurbishment~~provisions of this Indenture; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries not securing the Indebtedness so Refinanced; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (lf) Liens securing ~~xxxxxx, swaps, derivatives and other similar transactions entered into~~ Indebtedness (including Liens securing any Obligations in ~~the ordinary course~~ respect thereof) consisting of ~~business; (m) Liens~~ Indebtedness incurred in ~~connection~~ compliance with ~~an acquisition~~ Section 4.9, provided that after giving effect to such incurrence of ~~assets~~ Indebtedness (or ~~a project financed~~ on ~~a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for~~ the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect date of the ~~Company’s property or property~~ initial borrowing of ~~a Subsidiary for~~ such Indebtedness after giving pro forma effect to the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development incurrence of the ~~affected property for its intended use in the Company’s business or the business~~ entire committed amount of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialsuch Indebtedness), ~~steam or any by-products generated or produced by or from any of~~ the ~~Company’s or any of its Subsidiaries’ properties or with respect~~ Consolidated Secured Leverage Ratio shall not exceed 3.0 to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business1.0; and (xg) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 2 contracts

Samples: Indenture (Mobile Mini Inc), Indenture (Mobile Mini Inc)

Limitation on Liens. ~~The Company covenants that the Company and its~~ Neither Holdings nor any Borrower will, nor will they permit any of their Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or suffer to exist any Lien on upon any property or assets of any kind (real or personal, tangible or intangible) of Holdings, the ~~Company~~ Borrower or any ~~of its Subsidiaries~~Restricted Subsidiary, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ created pursuant to the Credit Documents to secure the Obligations or permitted in respect of any Mortgaged Property by the terms of the ~~Issue Date of the Notes~~applicable Mortgage; (b) ~~Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~Permitted Liens; (c) Liens securing Indebtedness ~~which are incurred~~ permitted pursuant to ~~extend~~Section 10.1(f) or 10.1(g); provided that (i) such Liens attach concurrently with or within 270 days after the acquisition, ~~renew~~ repair, replacement, construction, expansion or ~~refinance~~ improvement (as applicable) of the property subject to such Liens, (ii) such Liens do not at any time encumber any property, except for accessions to such property, other than the property financed by such Indebtedness ~~which is secured~~ and the proceeds and the products thereof and (iii) with respect to Capitalized Leases, such Liens do not at any time extend to or cover any assets (except for accessions to such assets) other than the assets subject to such Capitalized Leases; provided that individual financings of equipment provided by ~~Liens permitted~~ one lender may be cross collateralized to ~~be incurred under this Section 3.1~~other financings of equipment provided by such lender; (d) Liens ~~created~~ on property and assets existing on the Closing Date and listed on Schedule 10.2 or, to the extent not listed in ~~substitution of~~ such Schedule, such property or ~~as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1~~assets have a Fair Market Value that does not exceed $1,000,000 in the aggregate; provided that ~~based on a good faith determination~~ (i) such Lien does not extend to any other property or asset of ~~the Company~~Holdings, the Borrower or any Restricted Subsidiary other than after acquired property ~~encumbered under any such substitute~~ that is affixed or ~~replacement Lien is substantially similar in nature to~~ incorporated into the property ~~encumbered~~ covered by such Lien or financed by Indebtedness permitted by Section 10.1 and proceeds and products thereof and (ii) such Lien shall secure only those obligations that it secures on the ~~otherwise~~ Closing Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness permitted ~~Lien which is being replaced~~by Section 10.1; (e) The modification, replacement, extension or renewal of any Lien permitted by clauses (c), (d), (f), (g), (h), (q), (u) and (v) of this Section 10.2 upon or in the same assets theretofore subject to such Lien (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 10.1 and proceeds and products thereof) or the Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness as permitted by Section 10.1; (f) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 9.15), or existing on assets acquired, pursuant to a Permitted Acquisition or any other Investment permitted under Section 10.5 to the extent the Liens on such assets secure Indebtedness permitted by Section 10.1(k); provided that such Liens attach at all times only to the same assets that such Liens (other than after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 10.1 and proceeds and products thereof) attached to, and secure only the same Indebtedness or obligations (or any ~~assets~~Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness permitted by Section 10.1) that such Liens secured, ~~created solely~~ immediately prior to such Permitted Acquisition or such other Investment, as applicable; (g) (i) Liens placed upon the Capital Stock of any Restricted Subsidiary acquired pursuant to a Permitted Acquisition to secure ~~obligations~~ Indebtedness incurred pursuant to ~~finance~~ Section 10.1(l) in connection with such Permitted Acquisition and (ii) Liens placed upon the ~~refurbishment, improvement or construction~~ assets of such ~~asset, which obligations are incurred no later than 12 months after completion~~ Restricted Subsidiary to secure (A) a guarantee by such Restricted Subsidiary of any such Indebtedness of the Borrower or any other Restricted Subsidiary or (B) Indebtedness of such ~~refurbishment~~Restricted Subsidiary, ~~improvement or construction,~~ in either case incurred pursuant to Section 10.1(l) in connection with such Permitted Acquisition; (h) Liens on the Collateral securing Indebtedness permitted pursuant to Section 10.1(a)(ii) and ~~all renewals, extensions, refinancings, replacements or refundings~~ any related obligations with respect to cash management and hedging arrangements contemplated thereby; provided that such Liens are subject to the terms of ~~such obligations~~the Intercreditor Agreement; (i) Liens ~~given~~ securing Indebtedness or other obligations of Holdings, the Borrower or a Subsidiary in favor of Holdings, the Borrower or any Subsidiary that is a Guarantor and Liens securing Indebtedness or other obligations of any Subsidiary that is not a Guarantor in favor of any Subsidiary that is not a Guarantor; (j) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection (ii) attaching to ~~secure~~ commodity trading accounts or other commodity brokerage accounts incurred in the ~~payment~~ ordinary course of business and (iii) in favor of a banking institution arising as a matter of law encumbering deposits (including the right to set off) and which are within the general parameters customary in the banking industry; (k) Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 10.5 to be applied against the purchase price ~~incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any~~ for such ~~acquisition~~Investment, and (ii) ~~Liens existing on~~ consisting of an agreement to sell, transfer, lease or otherwise dispose of any property at in a transaction permitted under Section 10.4, in each case, solely to the ~~time~~ extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been permitted on the date of ~~acquisition thereof~~ the creation of such Lien; (l) Liens arising out of conditional sale, title retention, consignment or ~~at the time~~ similar arrangements for sale of ~~acquisition~~ goods entered into by the ~~Company~~ Borrower or any of ~~its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure~~ the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Restricted Subsidiaries in the ordinary course of business ~~to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property~~permitted by this Agreement; (jm) Liens on ~~any property in favor~~ securities that are the subject of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such propertyrepurchase agreements constituting Permitted Investments permitted under Section 10.5; (kn) Liens that are contractual rights of set-off (i) relating to the ~~pledge~~ establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit, automatic clearing house or ~~assignment~~ sweep accounts of Holdings, the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of ~~electricity~~Holdings, ~~gas~~ the Borrower and the Restricted Subsidiaries or (~~either natural~~ iii) relating to purchase orders and other agreements entered into with customers of Holdings, the Borrower or ~~artificial) or steam, accounts receivable or customers’ installment paper~~any Restricted Subsidiary in the ordinary course of business; (lo) Liens solely on any xxxx xxxxxxx money deposits made by Holdings, the Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder; (p) Liens on insurance policies and the proceeds thereof securing ~~xxxxxx, swaps, derivatives~~ the financing of the premiums with respect thereto; (q) Liens in respect of Permitted Sale Leasebacks; (r) the prior rights of consignees and ~~other similar transactions~~ their lenders under consignment arrangements entered into in the ordinary course of business; (ms) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect agreements to subordinate any interest of the ~~Company’s property~~ Borrower or ~~property of a~~ any Restricted Subsidiary ~~for the purpose of roads, pipelines, utility transmission and distribution lines~~ in any accounts receivable or other ~~rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure~~ proceeds arising from inventory consigned by the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company Borrower or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved Restricted Subsidiary pursuant to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, an agreement entered into in the ordinary course of business; (t) Liens on Capital Stock in joint ventures securing obligations of such joint venture; (u) Liens with respect to property or assets of any Restricted Foreign Subsidiary securing Indebtedness of a Restricted Foreign Subsidiary permitted under Section 10.1(x); and (xv) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in~~ Liens not otherwise permitted by this Section ~~3.1. Notwithstanding anything~~ 10.2 so long as the aggregate outstanding amount of Indebtedness and other obligations secured thereby does not exceed $12,500,000; provided that, if the most recent compliance certificate delivered pursuant to Section 9.1(d) demonstrates, on a Pro Forma Basis, a Consolidated Total Debt to Consolidated EBITDA Ratio of 3.00:1.00 or less as of the ~~contrary in this Section 3.1~~last day of the Test Period to which such compliance certificate relates, the ~~Company and~~ Borrower or any of its Restricted Subsidiaries ~~may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject~~ may secure up to ~~the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount~~ $7,500,000 of ~~Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted~~ additional obligations under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesclause 10.2(v).

Appears in 2 contracts

Samples: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)

Limitation on Liens. The Company ~~covenants that~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind on the ~~Company and its Subsidiaries will not create or incur any Lien on any property~~ assets of the Company or ~~any~~ its Restricted Subsidiaries securing Indebtedness of the Company or its ~~Subsidiaries~~Restricted Subsidiaries unless: (1) in the case of Liens securing Indebtedness of the Company or its Restricted Subsidiaries that is expressly subordinate or junior in right of payment to the Notes, ~~whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes are equally and ratably secured ~~until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (aA) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (bB) Liens ~~granted after the Issue Date of~~ securing the Notes ~~created in favor of~~ and the ~~Securityholders of the Notes~~Note Guarantees; (cC) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~Non-Recourse Indebtedness; (dD) Liens ~~created in substitution of or~~ securing Permitted Funding Indebtedness so long as ~~replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under~~ any such ~~substitute or replacement~~ Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; shall encumber only (i) ~~Liens given~~ the assets acquired or originated with the proceeds of such Indebtedness, assets that consist of Servicing Advances, MSRs, loans, mortgage related securities and other mortgage related receivables, REO Assets, Residual Assets and other similar assets subject to and pledged to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such ~~acquisition,~~ Indebtedness and (ii) ~~Liens existing on~~ any ~~property at~~ intangible contract rights and proceeds of, and other, related documents, records and assets directly related to the ~~time of acquisition thereof or at~~ assets set forth in the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to preceding clause (i) of this clause (D), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (gE) ~~pre-existing~~ Liens ~~on assets acquired after~~ securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that has been secured by a Lien permitted under this Indenture and that has been incurred in accordance with the ~~Issue Date~~ provisions of this Indenture; provided, however, that such Liens: (i) are no less favorable to the Holders than the Liens in respect of the ~~Notes;~~ Indebtedness being Refinanced; and (hii) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or ~~any of~~ its ~~Subsidiaries;~~ Restricted Subsidiaries not securing the Indebtedness so Refinanced (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of ~~a Subsidiary for~~ the ~~purpose of roads, pipelines, utility transmission~~ same type and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialvalue), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 2 contracts

Samples: Indenture (Nationstar Sub1 LLC), Indenture (Nationstar Sub2 LLC)

Limitation on Liens. The ~~Company covenants that the Company~~ Issuer will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, incur, assume or ~~incur~~ suffer to exist any ~~Lien on~~ Liens of any ~~property of the Company or~~ kind upon any of its ~~Subsidiaries, whether~~ respective properties now owned or ~~hereafter acquired~~acquired after the Closing Date or any income or profits therefrom securing (i) any Indebtedness of the Issuer which is expressly subordinate in right of payment to any other Indebtedness of the Issuer, ~~in order to secure any Indebtedness, without effectively providing that~~ unless the Notes ~~shall be~~ are equally and ratably ~~secured until such time as~~ secured; provided that, if such Indebtedness is ~~no longer secured by such Lien, except: (a) Liens existing as~~ subordinate in right of ~~the Issue Date of~~ payment to the Notes~~; (b) Liens granted after~~ , the ~~Issue Date of~~ Lien securing such Indebtedness shall be subordinate to the Lien securing the Notes ~~created in favor of~~ with the ~~Securityholders of~~ same relative priority as such subordinated Indebtedness shall have with respect to the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided further that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; this clause (i) shall not be applicable to any Liens ~~given to secure the payment~~ securing any such Indebtedness which became Indebtedness of the ~~purchase price incurred~~ Issuer pursuant to a transaction permitted under Article Five or Liens securing Acquired Indebtedness and, in ~~connection with the acquisition (including acquisition through merger or consolidation) of any property~~each case, ~~including Capital Lease transactions~~ which Liens were in ~~connection with any such acquisition, and (ii) Liens existing on any property~~ existence at the time of ~~acquisition thereof~~ such transaction or Incurrence of such Acquired Indebtedness and not Incurred in connection with or in contemplation of such transaction or Incurrence, so long as such Liens do not extend to or cover any property or assets of the Issuer or any Restricted Subsidiary other than property or assets acquired in such transaction, or (ii) any assumption, guarantee or other liability of any Restricted Subsidiary in respect of any Indebtedness of the Issuer which is expressly subordinate in right of payment to any other Indebtedness of the Issuer, unless the substantially similar assumption, guarantee or other liability of such Restricted Subsidiary in respect of the Notes is equally and ratably secured; provided that, if such subordinated Indebtedness is subordinate in right of payment to the Notes, the Lien securing the assumption, guarantee or other liability of such Restricted Subsidiary in respect of such Indebtedness shall be subordinate to the Lien securing the assumption, guarantee or other liability of such Restricted Subsidiary with respect to the Notes with the same relative priority as such subordinated Indebtedness shall have with respect to the Notes; provided further that this clause (ii) shall not be applicable to Liens securing any such assumption, guarantee or other liability which existed at the time such Restricted Subsidiary became a Restricted Subsidiary and which Liens were in existence at the time of ~~acquisition by the Company or any of its Subsidiaries of any Person then owning~~ such ~~property whether or not~~ transaction (unless such ~~existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i)~~assumption, the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress guarantee or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred liability was Incurred in connection with ~~an acquisition~~ or in contemplation of such Person becoming a Restricted Subsidiary), so long as such Liens do not extend to or cover any property or assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company Issuer or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesRestricted Subsidiary.

Appears in 2 contracts

Samples: Indenture (Multicare Companies Inc), Indenture (Genesis Eldercare Acquisition Corp)

Limitation on Liens. The ~~Company covenants that the Company and its Subsidiaries~~ Borrower will not ~~create~~ incur, create, assume, or ~~incur~~ permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit to exist, any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets, or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ disclosed on Schedule 9.2 hereto and Liens in favor of the ~~Issue Date~~ Agent for the benefit of the ~~Notes~~Lenders; (b) Liens ~~granted after the Issue Date of the Notes created~~ for taxes, assessments, or other governmental charges which are not delinquent or which are being diligently contested in ~~favor of the Securityholders of the Notes~~good faith and for which adequate reserves have been established; (c) Liens of mechanics, materialmen, warehousemen, carriers, landlords or other similar statutory Liens securing ~~Indebtedness which~~ obligations that are not yet due and are incurred ~~to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~in the ordinary course of business; (d) Liens ~~created in substitution~~ resulting from good faith deposits to secure payments of workmen’s compensation or ~~as replacements~~ other social security programs or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, contracts (other than for ~~any Lien permitted by clause (a~~payment of Debt), ~~(b)~~ or ~~(c)~~ leases made in the ordinary course of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedbusiness; (e) Liens on ~~any assets~~the Litigation Fund Account in favor of County Bank of Rehoboth Beach, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligationsDelaware; (if) purchase money Liens ~~given to secure~~ securing Permitted Debt described in Section 9.1(i), provided that the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with Debt secured by any such ~~acquisition, and (ii) Liens existing on any property at~~ Lien encumbers only the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofasset so purchased; (g) ~~pre-existing Liens on assets acquired after the Issue Date of the Notes~~financing statements filed in connection with operating lease transactions for computers; (h) Liens in favor of a landlord of a Leased Location on only the ~~Company~~ assets of the Borrower or any Subsidiary located at such Leased Location so long as no financing statement will be filed in connection with such Lien unless (i) the collateral description listed on such financing statement is limited to the assets of ~~its Subsidiaries~~the Borrower or applicable Subsidiary located at such Leased Location, and (ii) if requested by the Agent or the Required Lenders, the Borrower or applicable Subsidiary has obtained a Waiver for such Leased Location from such landlord (subject in all respects to a best efforts standard of performance), such Waiver to be in form and substance satisfactory to the Agent; (i) ~~purchase money~~ Liens ~~or purchase money security~~ in favor of former holders of equity interests ~~upon or~~ in ~~any property acquired or held~~ a Target on holdback and escrow accounts established by the ~~Company or any of its Subsidiaries in the ordinary course of business~~ Borrower pursuant to ~~secure the~~ purchase ~~price of such property or~~ agreements related to ~~secure Indebtedness incurred solely for the purpose of financing the acquisition of such property;~~Permitted Acquisitions; and (j) Liens on deposit accounts of the Borrower or any ~~property~~ Subsidiary required by the issuers of debit cards in connection with the Borrower’s or any such Subsidiary’s acceptance of debit card payments. Neither the Borrower nor any Subsidiary shall enter into or assume any agreement (other than the Loan Documents) prohibiting the creation or assumption of any Lien upon its properties or assets whether now owned or hereafter acquired; provided that in connection with the creation of purchase money Liens permitted hereby, the Borrower or the Subsidiary may agree that it will not permit any other Liens (other than the Liens in favor of the ~~United States~~ Agent for the benefit of ~~America~~ the Lenders) to encumber the assets subject to such purchase money Lien. Further, the Borrower will not and will not permit any Subsidiaries directly or indirectly to create or otherwise cause or suffer to exist to become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to: (i) pay dividends or make any other distribution on any of such Subsidiaries’ capital stock owned by the Borrower or any ~~State thereof~~ Subsidiary of the Borrower; (ii) subject to subordination provisions pay any Debt owed to the Borrower or any ~~political subdivision thereof~~ other Subsidiary; (iii) make loans or advances to ~~secure progress~~ the Borrower or any other ~~payments~~ Subsidiary; or ~~to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property;~~ (kiv) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of transfer any of its ~~Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds~~ properties or ~~other instruments under which~~ assets to the ~~Company~~ Borrower or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens Subsidiary not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesrestricted hereby.

Appears in 2 contracts

Samples: Credit Agreement (Ezcorp Inc), Credit Agreement (Ezcorp Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Guarantor will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness~~Restricted Subsidiaries (including, without ~~effectively providing~~ limitation, LGII) to, create, incur, assume or suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom where the aggregate amount of Indebtedness secured by any such Liens, together with the aggregate amount of property subject to any Sale-Leaseback Transactions of the Guarantor and its Restricted Subsidiaries (other than Permitted Sale-Leaseback Transactions), exceeds 10% of the Guarantor's Consolidated Net Worth, unless (x) in the case of Liens securing Indebtedness that is subordinate or junior in right of payment to the Senior Notes, the Senior Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (y) in all other cases, the Senior Notes are equally and ratably secured ~~until such time as such Indebtedness is no longer secured by such Lien, except:~~ except for (a) Liens existing as of at the ~~Issue Date of the Notes;~~ Measurement Date; (b) Liens ~~granted after~~ securing the ~~Issue Date of~~ Senior Notes or the ~~Notes created in favor of the Securityholders of the Notes;~~ Guarantee; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the ~~Company~~ Guarantor, LGII or any Wholly-Owned Subsidiary; (d) Liens securing Indebtedness which is incurred to refinance Indebtedness which has been secured by a Lien permitted under the provisions of this Indenture and which has been incurred in accordance with the provisions of the Indenture; PROVIDED, HOWEVER, that such Liens do not extend to or cover any property or assets of the Guarantor or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (ie) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 2 contracts

Samples: Indenture (Loewen Group Inc), Indenture (Loewen Group Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ suffer or ~~incur~~ permit any Subsidiary (other than any Allied Unrestricted Subsidiary, any Securitization Subsidiary or any Republic Insurance Entity) to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien on upon or with respect to any ~~property of the Company or any~~ part of its ~~Subsidiaries~~property, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that~~ other than the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~following (“Permitted Liens”): (a) ~~Liens existing~~ any Lien set forth in Schedule 7.02 (as such Schedule may be updated on the Initial Funding Date), and any extension, renewal or replacement of any such Lien so long as the principal amount secured thereby is not increased and the scope of the ~~Issue Date of the Notes~~property subject to such Lien is not extended; (b) Liens ~~granted after the Issue Date~~ imposed by law for taxes, assessments or charges of ~~the Notes created~~ any Governmental Authority for claims not yet due or which are being contested in ~~favor of the Securityholders of the Notes~~good faith by appropriate proceedings diligently pursued and with respect to which adequate reserves or other appropriate provisions are being maintained in accordance with GAAP; (c) statutory Liens ~~securing Indebtedness~~ of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by law or created in the ordinary course of business and in existence less than 120 days from the date of creation thereof for amounts not yet due or which are ~~incurred~~ being contested in good faith by appropriate proceedings and with respect to ~~extend, renew~~ which adequate reserves or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~other appropriate provisions are being maintained in accordance with GAAP; (d) Liens ~~created in substitution of or as replacements for~~ (other than any Lien ~~permitted~~ imposed by ~~clause (a)~~ERISA) consisting of pledges or deposits required in the ordinary course of business in connection with workers’ compensation, (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedunemployment insurance and other social security legislation; (e) Liens on the property of the Borrower or any ~~assets~~Subsidiary securing (i) the non-delinquent performance of bids, ~~created solely to secure~~ trade contracts (other than for borrowed money), leases and statutory obligations, (ii) surety bonds (excluding appeal bonds and other bonds posted in connection with court proceedings or judgments) and (iii) other non-delinquent obligations of a like nature in each case incurred ~~to finance~~ in the ~~refurbishment~~ordinary course of business, ~~improvement~~ provided all such Liens in the aggregate would not (even if enforced) cause a Material Adverse Effect; (f) Liens consisting of judgment or ~~construction~~ judicial attachment liens and liens securing contingent obligations on appeal bonds and other bonds posted in connection with court proceedings or judgments, provided that (i) in the case of judgment and judicial attachment liens, the enforcement of such ~~asset~~Liens is effectively stayed and (ii) all such Liens in the aggregate at any time outstanding for the Borrower and its Subsidiaries do not exceed $100,000,000; (g) easements, ~~which~~ rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, individually or in the aggregate, do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the businesses of the Borrower and its Subsidiaries; (h) Liens securing obligations in respect of Capital Leases and purchase money financings on assets subject to such leases or financings to the extent such Capital Leases and purchase money financings are ~~incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations~~otherwise permitted by Section 7.06(b); (i) Liens ~~given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation)~~ arising solely by virtue of any ~~property~~statutory or common law provision relating to banker’s liens, ~~including Capital Lease transactions~~ rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that (i) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Borrower in ~~connection with any such acquisition~~excess of those set forth by regulations promulgated by the FRB, and (ii) ~~Liens existing on any property at the time of acquisition thereof or at the time of acquisition~~ such deposit account is not intended by the ~~Company~~ Borrower or any ~~of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given~~ Subsidiary to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely provide collateral to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such propertydepository institution; (j) Liens on the rights of the Borrower or any ~~property~~ Subsidiary in bonds issued in connection with revenue bond financings in favor of ~~the United States~~ any issuer of ~~America or any State thereof or any political subdivision thereof~~ a letter of credit used to ~~secure progress or other payments or to secure Indebtedness incurred~~ provide security for the ~~purpose~~ payment of ~~financing the cost of acquiring, constructing or improving~~ such ~~property;~~bonds; and (k) ~~the pledge~~ other Liens, in addition to those permitted by clauses (a) through (j), securing Indebtedness or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred arising in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, Securitization Transactions; provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and that (x) the sum (without duplication) of all such Indebtedness, plus the aggregate investment or claim held at any time by all purchasers, assignees or other transferees of (or of interests in) receivables and other rights to payment in all Securitization Transactions (other than the Allied Securitization Program or any extension, ~~renewal~~renewal or refinancing thereof) shall not at any time exceed $75,000,000 in aggregate outstanding amount, ~~substitution or replacement~~ and (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, y) the aggregate principal ~~amount of Indebtedness incurred after~~ balance owed under the ~~Issue Date of the Notes and secured by Liens~~ Allied Securitization Program or any extension, renewal or refinancing thereof, shall not ~~permitted under this Section 3.1 does not~~ at any time exceed ~~the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~$400,000,000 in aggregate outstanding amount.

Appears in 2 contracts

Samples: Credit Agreement (Republic Services, Inc.), Credit Agreement (Republic Services Inc)

Limitation on Liens. The Company ~~covenants~~ shall not, and shall not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom, unless (i) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to the Notes or any Guarantee, as applicable, the Notes or such Guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes or Guarantees, as the case may be, are equally and ratably secured, except for (A) Liens existing as of the Effective Date and any extensions, renewals or replacements thereof, (B) Liens securing Senior Debt and Guarantor Senior Debt (whether incurred by the Company or a Restricted Subsidiary), (C) Liens securing the Notes and ~~its Subsidiaries will~~ the Guarantees, (D) Liens of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Subsidiary of the Company, (E) Liens securing Indebtedness which is incurred to refinance Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that such Liens do not ~~create~~ extend to or ~~incur any Lien on~~ cover any property or assets of the Company or any of its ~~Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that~~ Restricted Subsidiaries not securing the ~~Notes shall be equally and ratably secured until such time as such~~ Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisitionso refinanced, and (iiF) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Permitted Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 2 contracts

Samples: Indenture (Dade Behring Inc), Indenture (Dade Behring Holdings Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any of its Restricted Subsidiaries to, directly or indirectly, incur or suffer to exist any Lien on or with respect to any asset or property of the Company or ~~any of its Subsidiaries~~such Restricted Subsidiary, whether now owned or hereafter acquired, ~~in order to secure~~ or any ~~Indebtedness~~interest therein or any income or profits therefrom, ~~without effectively providing that~~ except the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien~~following (collectively, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction"Permitted Liens", and ~~all renewals~~individually, ~~extensions, refinancings, replacements or refundings of such obligations;~~a "Permitted Lien"): (i) Liens ~~given to secure~~ existing on the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and date hereof; (ii) Liens on property existing ~~on any property~~ at the time of acquisition thereof or Liens affecting property of a Person existing at the time it becomes a Subsidiary of ~~acquisition by~~ the Company or at the time it is merged into or consolidated with the Company or a Subsidiary of the Company; provided, however, that, in either case, such Liens do not extend to or cover any property of the Company or of any of its Restricted Subsidiaries other than the property that secured the acquired Indebtedness prior to the time such Indebtedness became Indebtedness of ~~any Person then owning such~~ the Company or a Subsidiary; (iii) Liens on property ~~whether or not such existing Liens were given~~ incurred to secure ~~the~~ payment of all or a part of the purchase price of thereof or to secure indebtedness incurred prior to, at the ~~property to which they attach; provided that with respect to clause (i)~~time of, ~~the Liens shall be given~~ or within 12 months after ~~such~~ the acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely thereof for the purpose of financing all or part of the ~~acquisition of such property~~purchase price thereof; (jiv) Liens on any property ~~in favor of the United States of America or any State thereof or any political subdivision thereof~~ to secure ~~progress~~ all or ~~other payments or to secure Indebtedness incurred for the purpose~~ part of ~~financing~~ the cost of ~~acquiring, constructing~~ improvements thereon or ~~improving~~ Indebtedness incurred to provide funds for such ~~property~~purpose in a principal amount not exceeding the cost of such improvements or construction and incurred within 12 months after completion of such improvements or construction; (kv) ~~the pledge~~ Liens to government entities granted to secure pollution control or ~~assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper~~industrial revenue bond financings; (lvi) Liens ~~securing xxxxxx~~which secure Indebtedness owing by a Restricted Subsidiary of the Company, ~~swaps~~to the Company or by one Restricted Subsidiary to another Restricted Subsidiary; (vii) Liens imposed by law, ~~derivatives and~~ including mechanics', materialmen's, carriers' or other ~~similar transactions entered into~~ like Liens, arising in the ordinary course of business; (mviii) any Lien incurred to secure the performance of surety or appeal bonds incurred in the ordinary course of business consistent with past practice; (ix) any Lien incidental to the normal conduct of the business of the Company or any Restricted Subsidiary or the ownership of its property or the conduct of the ordinary course of its business, including (A) zoning restrictions, easements, rights of way, reservations, restrictions on the use of real property and other minor irregularities of title, (B) rights of lessees under leases, (C) rights of collecting banks having rights of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Restricted Subsidiary on deposit with or in the possession of such banks, (D) Liens to secure the performance of statutory obligations, tenders, bids, leases, progress payments, performance or return-of-money bonds, performance or other similar bonds or other obligations of a similar nature incurred in the ordinary course of business, (E) Liens required by any contract or statute in order to permit the Company or a Subsidiary of the Company to perform any contract or subcontract made by it with or pursuant to the requirements of a governmental entity and (F) "first purchaser" Liens on crude oil, in each case which are not incurred in connection with ~~an acquisition~~ the borrowing of ~~assets~~ money, the obtaining of advances or ~~a project financed on a non-recourse basis; (n) Liens for taxes, assessments~~ credit or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of ~~money, none~~ the deferred purchase price of ~~which,~~ Property and which do not in the ~~opinion~~ aggregate impair the use of ~~counsel, are such as to interfere with the proper operation and development of the affected~~ property ~~for its intended use~~ in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the ~~Company’s properties~~ business of the Company and ~~those of~~ its ~~Subsidiaries,~~ Restricted Subsidiaries taken as a whole; (ux) ~~rights reserved to~~ Liens for taxes not yet due or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are being contested in ~~use in~~ good faith by appropriate proceedings, so long as reserves have been established to the ~~ordinary course of the electricity, gas (either natural or artificial) or steam business~~extent required by GAAP; (vxi) Liens ~~created or assumed~~ securing obligations in respect of Swap Contracts; (xii) any Lien granted by the Company or CRCCLP on its Receivables with regard to any ownership or security interest under any Receivables Purchase Facility established after the date hereof; (xiii) Liens on the assets of ~~its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by~~ the Company or any Restricted Subsidiary created or existing to secure stay or appeal bonds or otherwise resulting from any litigation or legal proceeding which are currently being contested in good faith by appropriate action promptly initiated and diligently conducted, including the Lien of ~~its Subsidiaries~~any judgment; provided, ~~provided~~ however, that the aggregate amount secured by all such Liens ~~are limited to the property financed and the related real estate~~does not exceed $25 million; (wxiv) ~~Liens incurred in~~ any Lien granted by CRCCLP on the ~~creation or existence of leases made, or existing on property acquired, in~~ real estate upon which CRCCLP's Corpus Christi refinery is located arising from the ~~ordinary course of business; and~~Corpus Christi Refinery West Plant Lease; (xxv) any extension, renewal, ~~substitution~~ replacement or ~~replacement (or successive extensions, renewals or replacements), in whole or in part,~~ refinancing of any Lien referred to in ~~this Section 3.1. Notwithstanding anything~~ the foregoing clauses (i) through (xiv); provided, however, that (A) such new Lien shall be limited to ~~the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create~~ all or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date part of the ~~Notes and~~ same property that secured the original Lien (plus improvements on such property) and (B) the amount secured by ~~Liens~~ such Lien at such time is not increased to any amount greater than the sum of (1) the outstanding amount or, if greater, committed amount described under clauses (i) through (xiv) at the time the original Lien became a Lien permitted under this Section ~~3.1 does not exceed~~ 8.1(a) and (2) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; (xvi) any Lien granted, after the ~~greater of~~ date hereof and in addition to those permitted by clause (i) 15to clause (xv) above, by the Company or any Restricted Subsidiary to secure its own direct (as opposed to guaranteed) Indebtedness if (A) all such Liens for the Company and all Restricted Subsidiaries together at any one time outstanding do not secure Indebtedness in excess of $10,000,000, and (B) such Liens do not encumber the Principal Properties or any right, title or interest of the Company or any Restricted Subsidiary in, to or under any Key Contract; (xvii) rights of collecting banks having a right of setoff, revocation, refund or chargeback with respect to money or instruments of the Company or any Restricted Subsidiary on deposit with or in the possession of such bank; (xviii) Liens on assets or property of the Company or a Restricted Subsidiary, other than a Principal Property, in connection with Synthetic Leases pursuant to which, for financial accounting purposes, the Company or a Restricted Subsidiary is the lessee; and (xix) Liens not otherwise permitted by the provisions of this Section 8.1(a) securing indebtedness in an aggregate principal amount at any time outstanding for the Company and its Restricted Subsidiaries not in excess of 10% of ~~Consolidated~~ Net Worth ~~calculated as~~ of the ~~date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Company and its Restricted Subsidiaries.

Appears in 2 contracts

Samples: Credit Agreement (Citgo Petroleum Corp), Credit Agreement (Citgo Petroleum Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Restricted Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens upon their respective assets, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~ except for (a) Liens ~~existing as of~~ securing Indebtedness under the ~~Issue Date of the Notes;~~ Credit Agreement, (b) ~~Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes;~~ Permitted Liens, (c) Liens securing Acquired Indebtedness, (d) Liens existing on the Issue Date, (e) Liens securing Indebtedness ~~which are~~ to the extent incurred to ~~extend~~refinance, replace, renew or ~~refinance~~ refund secured Indebtedness ~~which is secured by~~ existing on the Issue Date or Acquired Indebtedness, (f) Liens securing pollution control bonds and industrial revenue bonds, (g) Liens securing Indebtedness permitted to be incurred ~~under this Section 3.1;~~ pursuant to clauses (~~d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b~~viii) or (cix) of ~~this Section 3.1; provided that based on a good faith determination~~ the definition of Permitted Indebtedness, (h) Liens securing Indebtedness pursuant to clauses (vii) or (xi) of the ~~Company~~definition of Permitted Indebtedness; provided, ~~the property encumbered under any~~ however, that if such ~~substitute or replacement Lien~~ Indebtedness is ~~substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations~~ incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price cost of the property subject to ~~which they attach; provided that with respect to clause~~ a Lien securing such Indebtedness, the principal amount of the Indebtedness secured by such Lien shall not exceed 100% of the cost of the property subject thereto plus related financing costs, (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the ~~Company or~~ Trustee and the trustee in respect of any other outstanding indebtedness of ~~its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; Company, (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries granted in connection with the ~~issuance~~ redemption of ~~tax-exempt state and local bonds for purposes of financing, in whole or in part,~~ the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases madeOld Notes, or ~~existing on property acquired, in the ordinary course of business; and~~ (xk) any replacement, extension, renewal, ~~substitution~~ amendment or ~~replacement (or successive extensions, renewals or replacements)~~modification, in whole or in part, of any Lien ~~referred to in this Section 3.1. Notwithstanding anything~~ described above; provided that to the ~~contrary in this Section 3.1,~~ extent any such clause limits the ~~Company and any of its Subsidiaries may, without equally and ratably securing~~ amount secured or the ~~Notes, create or incur Liens which would otherwise be~~ assets subject to such Liens, no extension or renewal will increase the ~~restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal~~ amount ~~of Indebtedness incurred after the Issue Date of the Notes and~~ or assets secured by ~~Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation~~ or ~~incurrence of~~ subject to such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Liens.

Appears in 2 contracts

Samples: Indenture (Gaylord Container Corp /De/), Indenture (Gaylord Container Corp /De/)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create~~ Create, incur, assume or ~~incur~~ suffer to exist any Lien of any kind securing Indebtedness, Attributable Debt or trade payables on ~~any property of the Company or~~ any of its ~~Subsidiaries~~Property, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that~~ except for the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~following (the "Permitted Liens"): (a) Liens ~~existing as~~ securing the liabilities and obligations of the ~~Issue Date of~~ Borrower under the ~~Notes~~Loan Documents and Liens securing any Hedging Obligations relating to such liabilities and obligations; (b) Liens ~~granted after the Issue Date of the Notes created~~ in favor of the ~~Securityholders of the Notes~~Borrower or any Subsidiary Guarantors; (c) Liens ~~securing Indebtedness which are incurred~~ on property of a Person existing at the time such Person is merged with or into or consolidated with the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to ~~extend, renew~~ the contemplation of such merger or ~~refinance Indebtedness which is secured by Liens permitted~~ consolidation and do not extend to ~~be incurred under this Section 3.1~~any assets other than those of the Person merged into or consolidated with the Borrower or such Subsidiary; (d) Liens ~~created in substitution~~ on property existing at the time of acquisition of the property by the Borrower or ~~as replacements for~~ any ~~Lien permitted by clause (a), (b) or (c)~~ Subsidiary of ~~this Section 3.1~~the Borrower; provided that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar~~ Liens were in ~~nature~~ existence prior to the ~~property encumbered by the otherwise permitted Lien which is being replaced~~contemplation of such acquisition; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the ~~payment~~ performance of ~~the purchase price incurred in connection with the acquisition (including acquisition through merger~~ statutory or ~~consolidation) of any property~~regulatory obligations, ~~including Capital Lease transactions in connection with any such acquisition~~surety or appeal bonds, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress performance bonds or other ~~payments or to secure Indebtedness~~ obligations of a like nature incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (mf) Liens ~~incurred in connection~~ to secure Indebtedness (including Capital Lease Obligations) permitted by Section 6.1(b)(v) covering only the assets acquired with ~~an acquisition of assets or a project financed on a non-recourse basis~~such Indebtedness; (ng) Liens existing on the Closing Date listed on Schedule 6.2(g) (including the Lien of the First Mortgage Indenture and the Lien of the General and Refunding Mortgage Indenture); (h) Liens for taxes, assessments or governmental charges ~~for the then current year~~ or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and ~~taxes, assessments~~ diligently concluded; provided that any reserve or ~~governmental charges not then delinquent~~other appropriate provision as is required in conformity with GAAP has been made therefor; (oi) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations incurred in ~~respect~~ the ordinary course of business of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company Borrower or any of its Subsidiaries ~~has acquired or may in the future acquire~~ with respect to obligations (including Hedging Obligations) that do not exceed $15,000,000 at any ~~property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole~~one time outstanding; (uj) ~~rights reserved~~ Liens to secure Indebtedness permitted by clauses (viii), (xiii), (xiv) or ~~vested in others~~ (xv) of Section 6.1(b); (k) Liens securing any other Indebtedness issued or to ~~take~~ be issued under the General and Refunding Mortgage Indenture that was permitted to be incurred under Section 6.1; (l) Liens securing Permitted Refinancing Indebtedness incurred to refinance Indebtedness that was previously so secured; provided that any such Lien is limited to all or ~~receive any~~ part of the ~~electricity~~same property or assets (plus improvements, ~~gas~~ accessions, proceeds or dividends or distributions in respect thereof) that secured (~~either natural~~ or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced or ~~artificial)~~is in respect of property that is the security for a Permitted Lien hereunder; and (m) Liens, ~~steam~~ including pledges, rights of offset and bankers' liens, on deposit accounts, instruments, investment accounts and investment property (including cash, cash equivalents and marketable securities) from time to time maintained with or held by any ~~by-products generated~~ financial and/or depository institutions, in each case solely to secure any and all obligations now or ~~produced by or from any~~ hereafter existing of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company Borrower or any of its Subsidiaries in connection with any deposit account, investment account or cash management service (including ACH, Fedwire, CHIPS, concentration and zero balance accounts, and controlled disbursement, lockbox or restricted accounts) now or hereafter provided by any financial and/or depository institutions to or for the ~~issuance~~ benefit of ~~tax-exempt state and local bonds for purposes of financing, in whole or in part,~~ the ~~acquisition or construction of property to be used by the Company~~ Borrower or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 2 contracts

Samples: Credit Agreement (Nevada Power Co), Credit Agreement (Nevada Power Co)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create~~ Create, incur, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets or revenues, whether ~~now~~ owned or hereafter acquired~~, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien~~, except: (a) Liens ~~existing as~~ in favor of Agent, for the ~~Issue Date~~ ratable benefit of ~~the Notes~~Lenders; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Indebtedness permitted under subsection 7.1 hereof; (c) Liens ~~securing Indebtedness~~ for taxes and special assessments not yet due or which are ~~incurred to extend, renew or refinance Indebtedness which is secured~~ being contested in good faith and by ~~Liens permitted to be incurred under this Section 3.1~~appropriate proceedings if adequate reserves with respect thereto are maintained on the books of Borrower and the Guarantors in accordance with GAAP; (d) carriers', warehousemen's, mechanics', materialmen's, repairmen's, or other like Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of Borrower and the Guarantors in accordance with GAAP; (e) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation other than Liens imposed by the PBGC; (f) (i) deposits to secure the performance of: bids; trade contracts (other than for borrowed money or the purchase price of ~~such~~ property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives services); leases; statutory and other ~~similar transactions entered into in the ordinary course of business;~~ obligations required by law; surety, appeal and performance bonds (~~m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year~~ including Construction Bonds); and ~~taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar~~ other obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens like nature incurred ~~in the creation or existence of leases made, or existing on property acquired,~~ in the ordinary course of business; and (ii) Liens in favor of surety bond companies pursuant to indemnity agreements to secure the reimbursement obligations of Borrower or any Guarantor on Construction Bonds, provided (A) the Liens securing Construction Bonds shall be limited to the assets of, as appropriate, Borrower or such Guarantor at, and the rights of, as appropriate, Borrower or such Guarantor arising out of, the projects that are the subject of the Construction Bonds, (B) the Liens shall not attach to any real estate and (C) the aggregate amount of such Liens at any time shall not exceed the dollar amount of Construction Bonds then outstanding; (g) Liens of landlords, arising solely by operation of law, on fixtures and moveable property located on premises leased in the ordinary course of business; provided, however, that the rental payments secured thereby are not yet due; (h) Liens arising as a result of a judgment or judgments against Borrower or any of the Guarantors which do not in the aggregate exceed $2,500,000 at any one time outstanding, which are being diligently contested in good faith, which are not the subject of any attachment, levy or enforcement proceeding, and as to which appropriate reserves have been established in accordance with GAAP; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) ~~15% of Consolidated Net Worth calculated as of the date of the creation~~ Liens securing community development district bonds or ~~incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~similar bonds issued by Governmental Authorities to accomplish similar purposes.

Appears in 2 contracts

Samples: Credit Agreement (M I Homes Inc), Credit Agreement (M I Homes Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after~~ securing Indebtedness and other Obligations under the ~~Issue Date~~ Credit Agreement incurred pursuant to clause (2) of the ~~Notes created in favor~~ definition of ~~the Securityholders of the Notes~~"Permitted Indebtedness"; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the ~~refurbishment~~provisions of this Indenture; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders in any material respect and are not more favor- able to the lienholders in any material respect with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Mobile Mini Inc)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create or incur any Lien on any property of the Company or~~ Neither Parent nor any of its ~~Subsidiaries~~Restricted Subsidiaries will create, incur, assume or suffer to exist any Liens upon any of their respective properties or assets (including any asset in the form of the right to receive payments, fees or other consideration or benefits) whether ~~now~~ owned on the Closing Date or ~~hereafter acquired~~acquired after the Closing Date, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~other than: (a) Liens ~~existing as of~~ created under the ~~Issue Date of the Notes~~Credit Documents; (b) ~~Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~Permitted Liens; (c) Liens ~~securing~~ (including extensions, replacements and renewals thereof) in respect of Acquired Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by ~~clause (a), (b) or (c) of~~ this ~~Section 3.1~~Agreement; provided that ~~based on a good faith determination of~~ the ~~Company, the property encumbered under any such substitute or replacement Lien is substantially similar~~ Liens in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction respect of such ~~asset, which obligations are incurred no later than 12 months after completion of~~ Acquired Indebtedness secured such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property Acquired Indebtedness at the time of ~~acquisition thereof~~ the incurrence of such Acquired Indebtedness and such Liens and the Acquired Indebtedness were not incurred by Parent, any of its Restricted Subsidiaries or ~~at the time of acquisition~~ by the ~~Company~~ Person subject to the transaction described in the definition of the term “Acquired Indebtedness” or from whom the assets were acquired in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by Parent or any of its ~~Subsidiaries~~ Restricted Subsidiaries, and provided further that such Liens in respect of such Acquired Indebtedness do not extend to or cover any property or assets of Parent or of any ~~Person then owning such property whether or not such existing Liens were given to secure the payment~~ Restricted Subsidiary of ~~the purchase price of~~ Parent other than (A) the property ~~to which they attach; provided~~ or assets that ~~with respect to clause (i),~~ secured the ~~Liens shall be given within 12 months after such acquisition and shall attach solely~~ Acquired Indebtedness prior to the ~~property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date~~ time such Indebtedness became Acquired Indebtedness of ~~the Notes; (h) Liens in favor of the Company~~ Parent or any of its ~~Subsidiaries;~~ Restricted Subsidiaries and (iB) ~~purchase money Liens or purchase money security interests upon or in any property acquired or held~~ assets financed by the ~~Company or any of its Subsidiaries in~~ same financing source pursuant to the ~~ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of~~ same financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into scheme in the ordinary course of business; (md) Liens ~~incurred~~ on Receivables and other assets referred to in the definition of the term “Qualified Securitization Transaction” granted in connection with ~~an acquisition of assets or a project financed on a non-recourse basis~~any Qualified Securitization Transaction; (ne) Liens ~~for taxes, assessments or governmental charges~~ arising from claims of holders of Indebtedness against funds held in a defeasance trust for the ~~then current year and taxes, assessments or governmental charges not then delinquent~~benefit of such holders; (of) Liens ~~for workers’ compensation awards~~ (i) on property or assets of Parent or any Restricted Subsidiary of Parent securing Indebtedness incurred by such Person pursuant to Section 6.2(c), (ii) on cash or Cash Equivalents, or on property or assets of Parent or any Restricted Subsidiary of Parent, securing Indebtedness incurred by such Person pursuant to Section 6.2(g) and ~~similar obligations not then delinquent~~(iii) on property or assets of any Foreign Subsidiary of Parent securing Indebtedness incurred by such Person pursuant to Section 6.2(y); (pg) ~~mechanics’, laborers’, materialmen’s and similar~~ Liens ~~not then delinquent;~~ on assets (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (tCollateral) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries granted in connection with the ~~issuance~~ payment, settlement, acceleration or extinguishment of ~~tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company~~ all or any portion of ~~its Subsidiaries, provided~~ the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessOPEB Obligations; and (xh) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred~~ Liens on the Collateral securing obligations under the Xxxx County Loan Agreement and the IFA Loan Agreement; provided that such Liens are subject to ~~in this Section 3.1~~the Intercreditor Agreement. Notwithstanding anything herein to the ~~contrary in this Section 3.1~~contrary, ~~the Company and~~ neither Parent nor any of its Restricted Subsidiaries ~~may~~(nor, ~~without equally and ratably securing~~ in the ~~Notes~~case of clause (ii), ~~create~~ any of its Unrestricted Subsidiaries) will create, incur, assume or ~~incur Liens which would otherwise be subject~~ suffer to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of exist: (i) ~~15% of Consolidated Net Worth calculated as~~ any Liens securing any Indebtedness or other obligations incurred under the terms of the ~~date of~~ ABL Loan Documents unless the ~~creation~~ property or ~~incurrence of such Lien or~~ assets subject thereto constitute ABL Collateral; (ii) ~~15% of Consolidated Net Worth calculated as~~ any Liens on any Shy Principal Properties, or on any Capital Stock of, or any Shy Restricted Indebtedness issued by, any Shy Restricted Subsidiary, except any Lien otherwise permitted by this Section 6.1 if, under the terms of the ~~Issue Date~~ Shy Settlement Agreement, such Lien (other than any Lien permitted by Section 6.1(g)) may be created, incurred, assumed or suffered to exist without any requirement that any obligation under the Shy Settlement Agreement (including any obligation under the Health Benefit Program or the Basic Life Insurance Program (each such term as defined in the Shy Settlement Agreement)) be secured on an equal and ratable basis; or (iii) [reserved]; (iv) any Liens securing the obligations of Parent or the ~~Notes~~Borrower under the Parent Guarantee Agreement or the Support Agreement.

Appears in 1 contract

Samples: Credit Agreement (Navistar International Corp)

Limitation on Liens. ~~The Company covenants that~~ With respect to the ~~Company and its Subsidiaries will not create or incur any Lien on any property~~ Notes, Section 3.09 of the ~~Company~~ Base Indenture is hereby amended to be replaced with the following: The Issuer will not, nor will it permit any Subsidiary to, issue, assume or guarantee any Debt secured by a mortgage, lien, pledge or other encumbrance (hereinafter referred to as a “Mortgage”) upon any Principal Property or upon any Debt or capital stock of ~~its Subsidiaries, whether now owned or hereafter acquired, in order to secure~~ any ~~Indebtedness~~Subsidiary which owns any Principal Property, without ~~effectively~~ providing that the ~~Notes shall~~ Securities will be secured by such Mortgage equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~with (or prior to) any other Debt thereby secured, ~~except~~except that the foregoing provisions shall not apply to: (a) ~~Liens~~ Mortgages existing ~~as of~~ on the ~~Issue Date of~~ issue date (other than Mortgages securing Debt outstanding under the ~~Notes~~Revolving Credit Facilities); (b) ~~Liens granted after~~ Mortgages existing at the ~~Issue Date~~ time an entity becomes a Subsidiary of the ~~Notes created~~ Issuer or is merged into or consolidated with the Issuer or a Subsidiary of Issuer (provided that such Mortgages were not Incurred in ~~favor~~ contemplation of ~~the Securityholders of the Notes~~such transaction); (c) ~~Liens securing Indebtedness which are incurred to extend, renew~~ Mortgages in favor of the Issuer or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~any Subsidiary; (d) ~~Liens created in substitution~~ Mortgages on property to secure Debt Incurred prior to, at the time of or ~~as replacements~~ within 180 days after the construction, development or improvement of the property or after the completion of construction of the property, for ~~any Lien permitted by clause~~ the purpose of financing all or part of the cost of construction, development or improvement (~~a), (b) or (c) of this Section 3.1;~~ provided that ~~based on a good faith determination of the Company, the~~ such mortgages are limited to such property ~~encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~and improvements thereon); (e) ~~Liens~~ Mortgages on ~~any assets~~property, ~~created solely~~ shares of stock or Debt to secure ~~obligations incurred to finance the refurbishment~~Debt Incurred prior to, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of or within 180 days after the acquisition ~~thereof~~ of the property, shares of stock or at Debt, for the ~~time~~ purpose of ~~acquisition by the Company~~ financing all or ~~any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment~~ part of the purchase price of the ~~property to which they attach;~~ property, shares of stock or Debt (provided that ~~with respect~~ such mortgages are limited to ~~clause~~ such property and improvements thereon or the shares of stock or Debt so acquired); (i)f) Mortgages in favor of the United States of America, ~~the Liens shall be given within 12 months after such acquisition and shall attach solely~~ any state, any other country or any political subdivision, to ~~the property acquired~~ secure partial, progress, advance or ~~purchased and~~ other payments pursuant to any ~~improvements then~~ contract or ~~thereafter placed thereon and any proceeds thereof~~statute; (g) ~~pre-existing Liens~~ Mortgages on ~~assets acquired after the Issue Date~~ property of the ~~Notes~~Issuer or any Subsidiary securing Debt Incurred in connection with financing all or part of the cost of operating, constructing or acquiring projects, provided that the Debt is recourse only to such projects (other than Debt permitted to be Incurred under clause (o) below); (h) ~~Liens in favor~~ liens on property or assets of the ~~Company~~ Issuer or any Subsidiary consisting of ~~its Subsidiaries~~marine Mortgages provided for in Title XI of the Merchant Marine Act of 1936 or foreign equivalents; (i) ~~purchase money Liens~~ Mortgages or ~~purchase money security interests upon or in any~~ easements on property ~~acquired or held by~~ of the ~~Company~~ Issuer or any Subsidiary related to the financing of ~~its Subsidiaries~~ such property on a tax-exempt basis, that do not materially detract from the value of property or assets or materially impair the use thereof; (j) Mortgages on equipment of the Issuer or any Subsidiary granted in the ordinary course of business to ~~secure~~ the ~~purchase price of~~ Issuer’s or such ~~property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of~~ Subsidiary’s client at which such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such propertyequipment is located; (k) ~~the pledge or assignment~~ Mortgages securing Debt Incurred in the ordinary course of business in an aggregate principal amount that, when taken together with Indebtedness Incurred pursuant to Section 4.03(h) of ~~electricity~~this Supplemental Indenture, ~~gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper~~does not exceed $50,000,000 at any one time outstanding; (l) ~~Liens securing xxxxxx~~Mortgages in favor of the Notes; (m) Mortgages in respect to letters of credit, ~~swaps, derivatives and other~~ bank guarantees or similar ~~transactions entered into~~ instruments issued in the ordinary course of business; (~~m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (~~n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, ~~renewal, substitution~~ renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any ~~Lien~~ Mortgage referred to in ~~this Section 3.1. Notwithstanding anything~~ the foregoing clauses (a) to (m) inclusive or of any Debt secured thereby, provided that the ~~contrary~~ extension renewal or replacement secures the same or a lesser principal amount of Debt and, provided, further, that such Mortgage shall be limited to substantially the same property which secured the Mortgage extended, renewed or replaced (plus improvements on such property); (o) Mortgages securing Debt in ~~this Section 3.1~~respect of any Project Financing Incurred by any Project Financing Subsidiary, provided that such Mortgages may not be on any (i) Principal Property or (ii) proved oil and gas reserves, in each case owned or held by the ~~Company and~~ Issuer or any Subsidiary as of ~~its Subsidiaries may, without equally and ratably~~ the issue date); and (p) other Mortgages on Principal Property or on any Debt or capital stock of any Subsidiary securing ~~the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto,~~ Debt the aggregate principal amount of ~~Indebtedness incurred after~~ which, when taken together with the ~~Issue Date~~ aggregate principal amount of ~~the Notes and secured by Liens not permitted under this Section 3.1~~ all other then outstanding Aggregate Debt, does not exceed the greater of (i) 1510% of the Issuer’s Consolidated Net ~~Worth calculated as of the date of the creation or incurrence of such Lien~~ Assets or (ii) ~~15%~~ $1,750,000,000 at the time of ~~Consolidated Net Worth calculated as~~ creation, Incurrence or assumption of such Mortgages after giving effect to the receipt and application of the ~~Issue Date~~ proceeds of the ~~Notes~~Debt secured thereby.

Appears in 1 contract

Samples: Third Supplemental Indenture (Murphy Oil Corp /De)

Limitation on Liens. ~~The Company covenants that~~ (a) Without the prior written consent of the Majority CD&R Note Holders, so long as any CD&R Notes are outstanding, the Company shall not, and ~~its Subsidiaries will~~ shall not permit any Subsidiary to, directly or indirectly, create or ~~incur~~ permit to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property or assets, whether ~~now~~ owned on the date of this Agreement or ~~hereafter~~ thereafter acquired, except for Permitted Liens. Without in ~~order to secure~~ any ~~Indebtedness~~way limiting the foregoing, ~~without effectively providing~~ in the event that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of shall create or permit to exist any ~~Person then owning~~ such ~~property whether~~ Lien that is not a Permitted Lien securing any liability or ~~not~~ obligation, the Company shall, and shall cause each such ~~existing Liens were given~~ Subsidiary to, make effective provision to secure the ~~payment~~ Indebtedness due under the CD&R Notes or, in respect of Liens on any Subsidiary's property or assets, any Note Guarantee of such Subsidiary in respect of the ~~purchase price~~ CD&R Notes, (i) equally and ratably with any such liability or - obligation that ranks pari passu in right of payment with the CD&R Notes or (ii) -- prior to any such liability or obligation that is subordinated in right of payment to the CD&R Notes. (b) Without the prior written consent of the Majority Transferred Note Holders, so long as any Transferred Notes are outstanding, the Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien (other than Permitted Liens) on any of its property ~~to which they attach; provided that with respect to clause~~ or assets (iincluding Capital Stock of any other Person), whether owned on the ~~Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then~~ date of this Agreement or thereafter ~~placed thereon and~~ acquired, securing any ~~proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor~~ Indebtedness of the Company or any Note Guarantor of ~~its Subsidiaries;~~ the Transferred Notes (the "Initial Lien"), unless contemporaneously therewith effective provision is made ------------ to secure the Indebtedness due under the Transferred Notes or, in respect of Liens on any Restricted Subsidiary's property or assets, any Note Guarantee of such Restricted Subsidiary in respect of the Transferred Notes, (i) ~~purchase money Liens~~ equally and - ratably with any such obligation that ranks pari passu in right of payment with the Transferred Notes or ~~purchase money security interests~~ (ii) prior to any such obligation that by its terms is -- expressly subordinated in right of payment to the Transferred Notes, in each case for so long as such obligation is so secured by such Initial Lien. Any such Lien thereby created in favor of the Transferred Notes or any such Note Guarantee will be automatically and unconditionally released and discharged upon (i) the release and discharge of the Initial Lien to which it relates, or in (ii) - -- any sale, exchange or transfer to any Person not an Affiliate of the Company of the property ~~acquired~~ or assets secured by such Initial Lien, or of all of the Capital Stock held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Restricted Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases madein, or ~~existing on property acquired~~all or substantially all the assets of, ~~in the ordinary course of business; and (x)~~ any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of Restricted Subsidiary creating such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Lien.

Appears in 1 contract

Samples: Investment Agreement (Acterna Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any Restricted Subsidiary to, directly or ~~incur~~ indirectly, create, Incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (ai) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (bii) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Senior Debt and Liens securing Guarantor Senior Debt; (ciii) Liens securing the Securities and the Guarantees; (iv) Liens of the Company or a Wholly-Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (v) Liens securing Indebtedness which ~~are incurred~~ is Incurred to ~~extend, renew or~~ refinance any Indebtedness which is has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been Incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ PROVIDED, HOWEVER, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ Liens: (A) are no less favorable to the ~~property encumbered by~~ Holders and are not more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being refinanced; and (hB) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Avado Brands Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any Restricted Subsidiary to, create, incur, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (a) Liens ~~existing as~~ created hereunder or under any of the ~~Issue Date of the Notes~~other Loan Documents; (b) ~~Liens granted after the Issue Date~~ any Lien on any property of the ~~Notes created~~ Borrower or any Restricted Subsidiary existing on the Closing Date and set forth in ~~favor~~ Schedule 6.3 and any modifications, replacements, renewals or extensions thereof; provided that (i) such Lien shall not apply to any other property of the ~~Securityholders~~ Borrower or any Restricted Subsidiary other than (A) improvements and after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2, and (B) proceeds and products thereof, and (ii) such Lien shall secure only those obligations which it secures on the Closing Date and any Permitted Refinancing Indebtedness in respect thereof; Table of ~~the Notes;~~Contents (c) rights of setoff and similar arrangements and Liens in respect of Cash Management Obligations and in favor of depository and securities intermediaries to secure obligations owed in respect of card obligations or any overdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers of funds and fees and similar amounts related to bank accounts or securities accounts (including Liens securing ~~Indebtedness which are incurred to extend~~letters of credit, ~~renew~~ bank guarantees or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~similar instruments supporting any of the foregoing); (d) Liens ~~created in substitution~~ on assets of ~~or as replacements for any Lien~~ a Restricted Subsidiary which is not a Loan Party securing Indebtedness of such Restricted Subsidiary permitted by ~~clause (a), (b) or (c) of this~~ Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced6.2; (e) Liens (i) on “xxxxxxx money” or similar deposits or other cash advances in connection with acquisitions permitted by Section 6.7 or (ii) consisting of an agreement to dispose of any ~~assets~~property in an Asset Disposition permitted under Section 6.5, ~~created solely to secure obligations incurred to finance the refurbishment, improvement or construction of~~ including customary rights and restrictions contained in such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligationsagreements; (if) Liens ~~given to secure~~ for taxes, assessments, fees and other charges of any Governmental Authority that are not yet delinquent or which are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the ~~payment~~ books of the ~~purchase price incurred~~ Borrower or a Restricted Subsidiary, as applicable, in ~~connection~~ conformity with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofGAAP; (g) ~~pre-existing~~ Liens ~~on assets acquired after~~ created by operation of law not securing the ~~Issue Date~~ payment of ~~the Notes; (h)~~ Indebtedness for money borrowed or guaranteed, including carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlords’, shippers’, laborers’ or other like Liens ~~in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries~~ arising in the ordinary course of business which are not overdue for a period of more than forty-five (45) days and, if overdue, for which adequate reserves have been posted under GAAP; (h) pledges or deposits in connection with payroll taxes, workers’ compensation, unemployment insurance and other social security legislation; (i) pledges or deposits to secure the ~~purchase price~~ performance of ~~such property~~ bids, trade contracts (other than for borrowed money), leases, statutory or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiringregulatory obligations, ~~constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity~~surety and appeal bonds, ~~gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives~~ performance bonds and other ~~similar transactions entered into~~ obligations of a like nature incurred in the ordinary course of business; (mj) Liens created by or resulting from litigation or legal proceedings in the ordinary course of business or in respect of judgments, decrees, attachments or awards that, in each case, do not constitute an Event of Default under Section 7.1(i); (k) easements, rights-of-way, restrictions, zoning and other similar encumbrances on real property incurred in the ordinary course of business which, in the aggregate, are not likely to cause a Material Adverse Effect; (l) Liens securing Indebtedness permitted by Section 6.2(c); provided that no such Lien covers any property other than the property subject to such Capitalized Lease Obligation, or acquired in connection with ~~an acquisition~~ the incurrence of ~~assets or a project financed on a non~~such Indebtedness, as applicable, and the proceeds thereof; provided further that individual financings of equipment provided by one lender may be cross-~~recourse basis~~collateralized to other financings of equipment provided by such lender; Table of Contents (m) precautionary Liens filed by equipment lessors pursuant to operating leases of the Borrower and the Restricted Subsidiaries; provided that no such Lien covers any property other than the property subject to such lease; (n) ~~Liens for taxes~~leases, ~~assessments~~ licenses, subleases or ~~governmental charges for~~ sublicenses granted to others, including in respect of intellectual property, in the ~~then current year and taxes, assessments~~ ordinary course of business which do not (i) interfere in any material respect with the business of the Borrower or ~~governmental charges not then delinquent~~any Restricted Subsidiary or (ii) secure any Indebtedness; (o) Liens ~~for workers’ compensation awards~~ in favor of customs and ~~similar obligations not then delinquent~~revenue authorities arising as a matter of law to secure payment of customs duties in connection with importation of goods; (p) ~~mechanics’, laborers’, materialmen’s and similar~~ Liens ~~not then delinquent~~securing insurance premiums financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums; (q) ~~judgment Liens~~Liens on any property of (i) any Loan Party in favor of any other Loan Party and (ii) any Restricted Subsidiary that is not a Loan Party in favor of the Borrower or any other Restricted Subsidiary; (r) ~~easements or reservations in respect of the Company’s property or property~~ Liens arising from any interest of a ~~Subsidiary for~~ lessor under any real property lease or sublease agreement entered into by the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company Borrower or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, Restricted Subsidiary in the ordinary course of business; and (xs) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in~~ Liens not otherwise permitted by this Section ~~3.1. Notwithstanding anything~~ 6.2, provided that a Lien shall be permitted to be incurred pursuant to this clause (s) only if at the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, time such Lien is incurred the aggregate principal amount of ~~Indebtedness incurred after~~ the ~~Issue Date of the Notes and~~ obligations secured at such time (including such Lien) by Liens ~~not permitted under~~ outstanding pursuant to this ~~Section 3.1 does~~ clause (s) would not exceed ~~the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~$10,000,000.

Appears in 1 contract

Samples: Credit Agreement (J2 Global, Inc.)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or any Guarantee, the Notes and such Guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes and the Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Indebtedness ~~which are incurred to extend, renew~~ under the New Bank Credit Facility or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ the Canadian Credit Facility; (dC) Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ securing the Notes and the Guarantees; (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of ~~its Subsidiaries;~~ the Company; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that such Liens (A) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced and (B) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Kimberton Enterprises Inc)

Limitation on Liens. ~~The Company covenants that~~ Create or suffer to exist any Lien upon any of its Property, income or profits, whether now owned or hereafter acquired, except the following (collectively, "Permitted Liens"): Liens at any time granted in favor of the Collateral Agent in the Collateral to secure the Debt evidenced by the Notes; Liens at any time granted in favor of the Fleet Facility Agent in the Collateral to secure the Debt evidenced by the Fleet Facility Documents so long as there are no consensual Liens in the Collateral in favor of a third Person having a priority (A) senior to the Liens granted by the Company and its Subsidiaries ~~will not create or incur~~ in favor of the Collateral Agent in the Collateral and (B) junior to the Liens granted by the Company and its Subsidiaries in favor of the Fleet Facility Agent in the Collateral. Liens for Taxes (excluding any Lien on imposed pursuant to any ~~property~~ of the provisions of ERISA) not yet due or being Properly Contested; statutory Liens (excluding any Lien imposed pursuant to any of the provisions of ERISA) arising in the Ordinary Course of Business of the Company or a Subsidiary and which secure obligations (other than Funded Debt) incurred by the Company or such Subsidiary in the Ordinary Course of Business of such Person, but only if and for long as (x) payment in respect of any such Lien is not at the time required or the Debt secured by any such Lien is being Properly Contested and (y) such Liens do not materially detract from the value of the Property of the Company or such Subsidiary and do not materially impair the use thereof in the operation of the Company's or such Subsidiary's business; Purchase Money Liens securing Permitted Purchase Money Debt; Liens securing Debt of a Subsidiary of the Company to the Company or to another Subsidiary; Liens arising by virtue of the rendition, entry or issuance against the Company or any of its Subsidiaries, or any Property of the Company or any of its Subsidiaries, ~~whether now owned~~ of any judgment, writ, order, or ~~hereafter acquired, in order to secure~~ decree for so long as any ~~Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until~~ such ~~time as such Indebtedness is no longer secured by such Lien, except:~~ Lien (a) ~~Liens existing as of the Issue Date of the Notes;~~ is in existence for less than 20 consecutive days after it first arises or is being Properly Contested and (b) is at all times junior in priority to any Liens ~~granted after the Issue Date of the Notes created~~ in favor of the ~~Securityholders~~ Collateral Agent; Liens incurred or deposits made in the Ordinary Course of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given Business to secure the ~~payment~~ performance of tenders, bids, leases, contracts (other than for the repayment of Money Borrowed), statutory obligations and other similar obligations or arising as a result of progress payments under government contracts, provided that, to the extent any such Liens attach to any of the ~~purchase price incurred~~ Collateral, such Liens are at all times subordinate and junior to the Liens upon the Collateral in ~~connection with the acquisition (including acquisition through merger~~ favor of Collateral Agent; easements, rights-of-way, restrictions, covenants or ~~consolidation)~~ other agreements of ~~any property, including Capital Lease transactions in connection with any such acquisition,~~ record and ~~(ii) Liens existing~~ other similar charges or encumbrances on ~~any property at the time~~ real Property of ~~acquisition thereof or at the time of acquisition by~~ the Company or any of its Subsidiaries ~~of any Person then owning such property whether or~~ that do not ~~such existing Liens were given to secure~~ interfere with the ~~payment~~ ordinary conduct of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor business of the Company or such Subsidiary; normal and customary rights of setoff upon deposits of cash in favor of banks and other depository institutions and Liens of a collection bank arising under the UCC on Payment Items in the course of collection; such other Liens as appear on Schedule 9.2(e)(xi) hereto, to the extent provided therein; and such other liens as are approved in writing by the Required Holders. In addition to the foregoing restrictions, the Company shall seek to prevent CSP from creating or permitting to exist any Lien upon any of its ~~Subsidiaries; (i) purchase money~~ Property, income or profits, other than such Liens ~~or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries~~ as are created in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved mortgage lien to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries be granted in connection with the ~~issuance~~ contemplated mortgage refinancing of ~~tax-exempt state and local bonds for purposes of financing, in whole or in part,~~ the ~~acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related~~ CSP real ~~estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired~~Property; and, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date case of the ~~Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ mortgage refinancing, only so long as (i) ~~15%~~ the net proceeds from such refinancing are distributed to the partners of ~~Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or~~ CSP; and (ii) ~~15%~~ Chroma Technologies (or the Company on its behalf) causes its portion of ~~Consolidated Net Worth calculated as~~ such net proceeds to be applied to reduce the revolving loan balance of the ~~Issue Date of the Notes~~Fleet Facility Debt.

Appears in 1 contract

Samples: Note Purchase Agreement (Dixie Group Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after~~ securing borrowings under the ~~Issue Date~~ ABL Facility incurred pursuant to clause (2) of the ~~Notes created in favor~~ definition of ~~the Securityholders of the Notes~~“Permitted Indebtedness”; (c) Liens securing ~~Indebtedness which are~~ borrowings under the Sowood Credit Facility incurred pursuant to ~~extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~clause (3) of the definition of “Permitted Indebtedness”; (d) Liens ~~created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of~~ securing the Company, ’s and its Restricted Subsidiaries’ Obligations under the ~~property encumbered under~~ Hedge Facility or any ~~such substitute~~ replacement or ~~replacement Lien is substantially~~ similar ~~in nature to the property encumbered~~ hedge facility entered into by the ~~otherwise permitted Lien which is being replaced~~Company and its Restricted Subsidiaries; (e) Liens ~~on any assets, created solely to secure obligations incurred to finance~~ securing the ~~refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction,~~ Notes and ~~all renewals, extensions, refinancings, replacements or refundings of such obligations~~the Guarantees; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hf) Liens in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of ~~its Subsidiaries~~the Company; (g) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens: (i) ~~purchase money Liens or purchase money security interests upon or~~ are no less favorable to the Holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xh) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Total Gas & Electricity (PA) Inc)

Limitation on Liens. The ~~Company covenants that~~ Borrower will not, and the ~~Company and its Subsidiaries~~ Borrower will not ~~create~~ permit any Subsidiary to, create, assume, incur or ~~incur~~ suffer to exist any Lien on any ~~property of the Company or any of its Subsidiaries, whether~~ asset now owned or hereafter ~~acquired~~acquired by it, ~~in order to secure any Indebtedness, without effectively providing that~~ except for the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~following: (a) Liens existing as on the date hereof, which are reflected in the balance sheet referred to in Section 3.4 hereof or the footnotes thereto, and renewals, extensions and continuations thereof, provided that such renewals, extensions and continuations shall not (i) increase the Indebtedness secured thereby or (ii) extend the coverage thereof beyond the original coverage of ~~the Issue Date of the Notes~~such Lien; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or ~~governmental charges for the then current year and taxes, assessments or~~ other governmental charges not ~~then delinquent; (o)~~ yet delinquent or being contested in good faith and by appropriate proceedings; Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with workers’ compensation, unemployment insurance or other social security obligations; Liens securing the ~~issuance~~ performance of ~~tax-exempt state~~ bids, tenders, contracts, surety and ~~local bonds for purposes~~ appeal bonds; Liens to secure progress or partial payments and other Liens of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, like nature arising in the ordinary course of business; mechanics’, workmen’s, materialmen’s or other like Liens arising in the ordinary course of business in respect of obligations which are not yet due or which are being contested in good faith; and other Liens arising in the ordinary course of business and incidental to the conduct of the business of the Borrower or such Subsidiary or to the ownership of its properties or assets, which were not incurred in connection with the borrowing of money and which do not materially detract from the value of the properties or assets of the Borrower or materially affect the use thereof in the operation of its business; (c) Liens in respect of judgments and awards to the extent that such judgments or awards are being contested in good faith and adequate insurance or appropriate reserves are maintained with respect thereto on the books of the Borrower to the extent required by GAAP and so long as execution is not levied thereunder; (d) Liens on any property acquired after the date hereof which Liens existed when such property was acquired, and extensions and renewals of such Liens; provided that no such extension or renewal shall increase the aggregate amount of Indebtedness secured thereby, nor add to the property subject to such Lien; (e) any Lien on any asset securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring or improving such asset; provided that such Lien attaches to such asset concurrently with or within 120 days after the acquisition or completion of the improvement thereof; (f) other Liens incurred by the Borrower in the ordinary course of its business, provided that the aggregate amount of Indebtedness secured by all Liens permitted by this clause (f) shall not exceed $20,000,000 in the aggregate; (g) zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title which do not in the aggregate materially detract from the value of its property or assets or materially impair the use thereof in the operations, business or prospects of the Borrower or its Subsidiaries; and (xh) ~~any extension, renewal, substitution~~ Liens on the property or ~~replacement (or successive extensions, renewals or replacements), in whole or in part,~~ assets of any ~~Lien referred to~~ Subsidiary in favor of the Borrower or any Subsidiary. It being agreed that nothing in this Section ~~3.1. Notwithstanding anything~~ shall be deemed to directly or indirectly limit any lien that the ~~contrary in this Section 3.1, the Company and~~ Borrower or any of its Subsidiaries ~~may, without equally and ratably securing~~ may grant to any other Person on any margin stock (within the ~~Notes, create or incur Liens which would otherwise be subject~~ meaning of Regulation U of the Board of Governors of the Federal Reserve System) owned thereby to the ~~restrictions set forth~~ extent such limitation could result in ~~this Section 3.1 if, after giving effect thereto,~~ the ~~aggregate principal amount of Indebtedness incurred after~~ view that the ~~Issue Date of the Notes and~~ Borrower Obligations hereunder are directly or indirectly secured by ~~Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of~~ such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~margin stock.

Appears in 1 contract

Samples: Credit Agreement (Ims Health Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Restricted Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom, unless (x) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (y) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (a) Liens existing as of the Issue Date and Liens under and as contemplated by agreements existing as of the ~~Notes;~~ Issue Date, including Liens on Capital Stock of Subsidiaries of the Company and accounts receivable, inventory and intangibles of the Company and its Restricted Subsidiaries securing Indebtedness (including any guarantees) under the Credit Agreement and the Note Agreement incurred in accordance with this Indenture; (b) Liens ~~granted after~~ securing the ~~Issue Date of the Notes created in favor of the Securityholders of the Notes;~~ Securities or any Guarantee; (c) Liens securing ~~Indebtedness which are incurred~~ the 1995 Notes and the 1995 Notes Guarantees pursuant to ~~extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ the terms of the 1995 Notes Indenture; (d) Liens ~~created~~ in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ favor of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced;~~ ; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Indebtedness which is incurred to ~~finance the refurbishment, improvement or construction of such asset,~~ refinance Indebtedness which ~~obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction,~~ has been secured by a Lien permitted under this Indenture and ~~all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price~~ which has been incurred in ~~connection~~ accordance with the ~~acquisition (including acquisition through merger~~ provisions of this Indenture; provided, however, that such Liens do not extend to or ~~consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on~~ cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (if) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Walbro Corp)

Limitation on Liens. The Company ~~covenants~~ shall not , and shall ------------------- not permit any of its Significant Subsidiaries, at any time, directly or indirectly, to create, assume, incur or permit to exist any Indebtedness secured by a Lien of any kind on any of the Company's property or assets (which, for the avoidance of doubt, shall not include any of the property or assets of the Company's Subsidiaries) or any share of Capital Stock of any Significant Subsidiary owned by the Company or a Significant Subsidiary without making effective provision whereby the Notes then Outstanding shall be equally and ratably secured with such secured Indebtedness so long as such other Indebtedness shall be secured; provided that the ~~Company~~ Lien securing any Subordinated Indebtedness shall be subordinate and ~~its Subsidiaries will~~ junior to the Lien securing the Notes with the same relative priority as such Subordinated Indebtedness shall have with respect to the Notes; and provided, further, that this covenant shall not ~~create or incur~~ apply to any ~~Lien on~~ Liens securing any ~~property~~ such indebtedness which became Indebtedness of the Company or any of its ~~Subsidiaries, whether now owned~~ Subsidiaries pursuant to a transaction subject to the provisions of Article Eight or ~~hereafter acquired~~Liens securing Acquired Indebtedness and, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asseteach case, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens ~~given to secure the payment of the purchase price incurred~~ were in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property existence at the time of ~~acquisition thereof~~ such transaction or at the ~~time~~ incurrence of ~~acquisition by the Company~~ such Acquired Indebtedness (unless such Indebtedness was incurred or ~~any~~ such Lien created in connection with, or in contemplation of, such transaction or incurrence of ~~its Subsidiaries of any Person then owning~~ such ~~property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i~~Acquired Indebtedness), ~~the~~ so long as such Liens ~~shall be given within 12 months after such acquisition and shall attach solely~~ do not extend to ~~the~~ or cover any property ~~acquired~~ or ~~purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on~~ assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries;~~ Significant Subsidiaries other than property or assets acquired in such transaction or securing such Acquired Indebtedness prior to its incurrence; and provided, further, however that this covenant shall not apply to (i) ~~purchase money~~ any Liens ~~or purchase money security interests upon or~~ created in connection with the incurrence of any ~~property acquired or held by~~ Indebtedness of the Company or any of its Significant Subsidiaries consisting of capital lease obligations or of purchase money indebtedness (ii), amounts, if any, deposited in trust or in escrow for the ~~ordinary course~~ defeasance or redemption of ~~business~~ the Company's 9 1/2% Senior Notes due 2000 or (iii) Liens securing Indebtedness of a Subsidiary that becomes a Significant Subsidiary, which Liens are in existence as of the end of the fiscal quarter immediately preceding the fiscal quarter during which such Subsidiary becomes a Significant Subsidiary. If the Company shall hereafter be required to secure the ~~purchase price of such property or~~ Notes equally and ratably with any other Indebtedness pursuant to ~~secure Indebtedness incurred solely for the purpose of financing the acquisition of such property;~~ this covenant, (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (ki) the ~~pledge or assignment in~~ Company shall promptly deliver to the ~~ordinary course~~ Trustee an Officers' Certificate stating that the foregoing covenant has been complied with, and an Opinion of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, Counsel stating that in the opinion of ~~counsel, are~~ such ~~as to interfere~~ counsel the foregoing covenant has been complied with ~~the proper operation~~ and ~~development of the affected property for its intended use in the Company’s business or the business of~~ that any ~~of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other~~ instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed executed by the Company or any ~~of its Subsidiaries in connection with~~ Subsidiary, as the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquiredcase may be, in the ~~ordinary course~~ performance of ~~business; and~~ the foregoing covenant comply with the requirements of the foregoing covenant and (xii) ~~any extension~~the Trustee is hereby authorized to enter into an indenture or agreement supplemental thereto and to take such action, ~~renewal~~if any, ~~substitution or replacement (or successive extensions, renewals or replacements), in whole or in part,~~ as it may deem advisable to enable it to enforce the rights of ~~any Lien referred to in this Section 3.1. Notwithstanding anything to~~ the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date Holders of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesso secured.

Appears in 1 contract

Samples: Indenture (Presidential Life Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of ~~its Subsidiaries~~the Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (ii) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably secured with the obligations so secured until such ~~time as such Indebtedness is~~ obligations are no longer secured by ~~such~~ a Lien, ~~except~~except for: (aA) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c~~B) Liens securing Senior Debt, Guarantor Senior Debt or Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which~~ of a Restricted Subsidiary that is ~~secured by Liens~~ not a Guarantor that is permitted to be incurred under this ~~Section 3.1~~Indenture; (dC) Liens ~~created in substitution of or as replacements for~~ securing the Securities and any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedGuarantees; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or ~~any of its Subsidiaries~~a Restricted Subsidiary; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that such Liens do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of ~~its~~ the Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness ~~incurred solely for the purpose of financing the acquisition of such property;~~ so Refinanced (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than ~~to secure the payment of money~~improvements, ~~none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business~~ additions or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialaccessions thereto), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (xF) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (General Automation Inc/Il)

Limitation on Liens. ~~The Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Subsidiaries to, incur, create, assume, or permit to exist any Lien upon any of its Property, assets, or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ in favor of Lenders or Administrative Agent for the ~~Issue Date~~ benefit of ~~the Notes~~Lenders; (b) ~~Liens granted after~~ Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the ~~Issue Date~~ use of real property that do not (individually or in the aggregate) materially affect the value of the ~~Notes created~~ assets encumbered thereby or materially impair the ability of Borrower or its Subsidiaries to use such assets in ~~favor~~ their respective businesses, and none of ~~the Securityholders of the Notes~~which is violated in any material respect by existing or proposed structures or land use; (c) Liens ~~securing Indebtedness~~ for taxes, assessments, or other governmental charges which are ~~incurred to extend, renew~~ not delinquent or ~~refinance Indebtedness~~ which ~~is secured by Liens permitted to be incurred under this Section 3.1~~are being contested in good faith and for which adequate reserves in accordance with GAAP have been established; (d) Liens ~~created~~ of mechanics, materialmen, warehousemen, carriers, or other similar statutory Liens securing obligations that are not yet due and are incurred in ~~substitution~~ the ordinary course of business, or ~~as replacements for any Lien permitted~~ are being dealt with by ~~clause (a), (b) or (c) of this~~ Borrower in accordance with Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced7.14; (e) Liens ~~on any assets, created solely~~ resulting from good faith deposits to secure ~~obligations incurred to finance the refurbishment, improvement~~ payments of workmen’s compensation or ~~construction of such asset, which obligations are incurred no later~~ other social security programs (other than ~~12 months after completion of such refurbishment, improvement~~ Liens imposed by ERISA) or ~~construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given~~ to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, contracts (other than for payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (iDebt), ~~the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired~~ or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into leases made in the ordinary course of business; (mf) Purchase money Liens ~~incurred in connection~~ on specific personal property (not real property) to secure Debt used to acquire such personal property, and Liens securing Capitalized Lease Obligations with ~~an acquisition of assets or a project financed on a non-recourse basis~~respect to specific leased property; (ng) Liens ~~for taxes, assessments or governmental charges for the then current year~~ securing Profit and ~~taxes, assessments or governmental charges not then delinquent~~Participation Agreements; (oh) Liens ~~for workers’ compensation awards and similar obligations not then delinquent~~securing any Mortgage Repurchase Facility Debt; (pi) ~~mechanics’, laborers’, materialmen’s and similar Liens not then delinquent;~~Permitted Acquisition Liens; and (qj) ~~judgment Liens;~~ Liens securing other Debt, provided that (rA) ~~easements~~ such Liens do not encumber Borrowing Base Property, (B) such Debt is not guaranteed by Borrower or ~~reservations in respect~~ any of Borrower’s Subsidiaries, and (C) the ~~Company~~aggregate outstanding principal balance of all such Debt does not exceed 15% of Borrower’s ~~property or property of a Subsidiary for the purpose of roads~~Tangible Net Worth at any time; provided, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of whichthat, in the ~~opinion of counsel, are such as to interfere with~~ event that (i) the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company Borrower or any of its Subsidiaries ~~has acquired or may in the future acquire~~ shall incur any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property Lien that is permitted to be ~~used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens~~ incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this ~~Section 3.1 does not exceed the greater of~~ clause (ij) ~~15% of Consolidated Net Worth calculated as of~~ and (ii) subsequent to the date of the ~~creation or~~ incurrence of such Lien, such Lien ~~or (ii) 15%~~ shall cease to be permitted hereunder as a result of ~~Consolidated~~ a subsequent decrease in Borrower’s Tangible Net Worth, then the continued existence of such Lien following such decrease in Borrower’s Tangible Net Worth ~~calculated~~ shall not constitute a breach or violation of this clause (j), but the Borrower and its Subsidiaries shall not be entitled to incur any additional Liens under this clause (j) until such time as such new Liens would be permitted to be incurred pursuant to the foregoing provisions of ~~the Issue Date of the Notes~~this clause (j).

Appears in 1 contract

Samples: Credit Agreement (Century Communities, Inc.)

Limitation on Liens. The ~~Company covenants that the Company~~ Parent will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any of the Subsidiaries to, incur, create, assume, or ~~incur~~ permit to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets, or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that~~ except the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~following: (a) Existing Liens ~~existing as of~~ disclosed on Schedule 11.2 hereto and any replacement, renewal or extension thereof that do not increase the ~~Issue Date of the Notes~~outstanding principal amount thereof or extend to any additional assets; (b) ~~Liens granted after~~ Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the ~~Issue Date~~ use of real property that do not (individually or in the aggregate) materially affect the value of the ~~Notes created in favor~~ assets encumbered thereby or materially impair the ability of the ~~Securityholders~~ Parent or the Subsidiaries to use such assets in their respective businesses, and none of ~~the Notes~~which is violated in any material respect by existing or proposed structures or land use; (c) Liens ~~securing Indebtedness~~ (other than Liens relating to Environmental Liabilities or ERISA) for taxes, assessments, or other governmental charges that are not delinquent or which are ~~incurred to extend, renew or refinance Indebtedness~~ being contested in good faith and for which ~~is secured by Liens permitted to be incurred under this Section 3.1~~adequate reserves have been established; (d) Liens ~~created~~ of mechanics, materialmen, warehousemen, carriers, landlords, or other similar statutory Liens securing obligations that are not yet due and are incurred in ~~substitution~~ the ordinary course of business or ~~as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a~~ which are being contested in good faith ~~determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien~~ and for which ~~is being replaced~~adequate reserves have been established; (e) Liens ~~on any assets, created solely~~ resulting from good faith deposits to secure ~~obligations incurred~~ payments of worker's compensation or other social security programs or to ~~finance~~ secure the ~~refurbishment~~performance of tenders, ~~improvement or construction of such asset~~statutory obligations, ~~which obligations are incurred no later than 12 months after completion of such refurbishment~~surety and appeal bonds, ~~improvement or construction~~bids, and ~~all renewals, extensions, refinancings, replacements or refundings~~ contracts (other than for payment of ~~such obligations~~Debt); (f) Liens for purchase money obligations and Capital Lease Obligations; provided that: (i) ~~Liens given to secure~~ the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with Debt secured by any such ~~acquisition,~~ Lien is permitted under Section 11.1; and (ii) ~~Liens existing on~~ any ~~property at~~ such Lien encumbers only the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofasset so purchased; (g) ~~pre-existing~~ Liens ~~on assets acquired after the Issue Date~~ related to any attachment or judgment not constituting an Event of ~~the Notes;~~Default; and (h) Liens ~~in favor~~ arising from filing UCC financing statements regarding leases not prohibited by this Agreement. Except as provided herein, neither the Parent nor the Borrower will, and each will not permit any of the ~~Company~~ Subsidiaries directly or indirectly to create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any such companies to: (1) pay dividends or make any other distribution on any of such company's capital stock (or other equity interests) owned by the Parent or any of ~~its~~ the Subsidiaries; ; (i2) ~~purchase money Liens or purchase money security interests upon or in~~ subject to subordination provisions, pay any ~~property acquired or held by~~ Debt owed to the ~~Company~~ Parent or any of ~~its Subsidiaries in~~ the ~~ordinary course of business~~ Subsidiaries; (3) make loans or advances to ~~secure~~ the ~~purchase price of such property~~ Parent or ~~to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on~~ any ~~property in favor~~ of the ~~United States of America~~ Subsidiaries; or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k4) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of transfer any of its ~~Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds~~ property or ~~other instruments under which~~ assets to the ~~Company~~ Parent or any of ~~its Subsidiaries has acquired or may in~~ the ~~future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its~~ Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Credit Agreement (Tufco Technologies Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or the Guarantees, the Notes or the Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and in all other cases, the Notes or the Guarantees, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except: (a)~~ except for: Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; Liens securing Senior Debt and Liens securing Guarantor Senior Debt; Liens securing the Notes and the Guarantees; Liens of the ~~Notes; (b) Liens granted after the Issue Date~~ Company or a Wholly Owned Restricted Subsidiary of the ~~Notes created~~ Company on assets of any Restricted Subsidiary of the Company and Liens on assets of the Company in favor of ~~the Securityholders of the Notes; (c)~~ a Wholly Owned Restricted Subsidiary that is a Guarantor; Liens securing ~~Indebtedness which are incurred to extend, renew or refinance~~ Refinancing Indebtedness which is incurred to Refinance any Indebtedness that has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ Indenture and that has been incurred without violation of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders and are not more favorable to the lienholders, in each case in any material respect, with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any categories of property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Manitowoc Co Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~Property (including, but not limited to, the Collateral), whether now owned or hereafter acquired; provided, ~~in order to secure any Indebtedness~~however, ~~without effectively providing~~ that the ~~Notes~~ foregoing restriction and limitation shall ~~be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~not apply to the following Liens: (a) Liens ~~existing as of~~ created under the ~~Issue Date of the Notes~~Collateral Documents; (b) Liens ~~granted after the Issue Date~~ existing as of the ~~Notes created in favor of the Securityholders of the Notes~~date hereof and reflected on Schedule 8.11 hereto; (c) Liens ~~securing Indebtedness which are incurred~~ existing on property at the time acquired by the Borrower or any Restricted Subsidiary thereof or existing on the property of a corporation at the time it becomes a Restricted Subsidiary, or placed upon property within 120 days after the date of acquisition thereof by the Borrower or any Restricted Subsidiary to ~~extend~~secure a portion of the purchase price thereof, ~~renew~~ but only if (i) such Lien shall attach solely to the property acquired, purchased or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~constructed and (ii) such Lien does not exceed the lesser of the fair market value or cost of such property; (d) Liens ~~created in substitution~~ constituting renewals, extensions or refundings of ~~or as replacements for any Lien~~ Liens permitted by clause ~~(a),~~ (b) or (c) ~~of this Section 3.1;~~ above, provided that ~~based on a good faith determination~~ the principal amount of the ~~Company, the property encumbered under~~ Indebtedness secured by any such ~~substitute~~ new Lien does not exceed the principal amount of the Indebtedness being renewed, extended or ~~replacement~~ refunded at the time of renewal, extension or refunding thereof and that such new Lien ~~is substantially similar in nature~~ attaches only to the same property ~~encumbered by the otherwise permitted Lien which is being replaced~~theretofore subject to such earlier Lien; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges ~~for~~ or levies, or the ~~then current year~~ claims or demands of materialmen, mechanics, carriers, workmen, repairmen, warehousemen, landlords and ~~taxes~~other like persons, ~~assessments or governmental charges~~ provided that payment thereof is not ~~then delinquent~~at the time required by Section 8.3 hereof; (of) other Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect incidental to the conduct of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its ~~intended use in the Company’s~~ business or the ~~business of any~~ ownership of its ~~Subsidiaries; (t) any defects~~ property and assets when not incurred in connection with the borrowing of ~~title~~ money or the obtaining of advances of credit, and ~~any terms, conditions, agreements, covenants, exceptions and reservations~~ which do not in ~~deeds or other instruments under which~~ the ~~Company or any~~ aggregate materially detract from the value of its ~~Subsidiaries has acquired~~ property or ~~may~~ assets, or materially impair the use thereof in ~~the future acquire any property, none of which, in the opinion of counsel, materially adversely affects~~ the operation of ~~the Company’s properties and those of~~ its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (vg) attachment, judgment and other similar Liens ~~created or assumed by the Company or any of its Subsidiaries~~ arising in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries~~court proceedings, provided that (i) execution or other enforcement of such Liens is effectively stayed, (ii) the ~~Liens~~ claims secured thereby are ~~limited to~~ being actively contested in good faith by appropriate proceedings, (iii) adequate reserves in conformity with GAAP have been provided on the ~~property financed~~ books of the Borrower or such Restricted Subsidiary, and (iv) the ~~related real estate; (w) Liens incurred~~ aggregate amount of the liabilities of the Borrower and all Restricted Subsidiaries so secured, including interest and penalties thereon, shall not be in ~~the creation or existence~~ excess of ~~leases made, or existing on property acquired, in the ordinary course of business~~$100,000 at any one time outstanding; and (h) Liens granted to secure the Fixed Asset Financing, provided that such Liens (x) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything~~ only extend to the ~~contrary in this Section 3.1~~fixed assets acquired with the proceeds of such Fixed Asset Financing, (y) only secure the ~~Company~~ original purchase price of such fixed assets, as reduced by repayments thereon, and (z) do not extend to or cover any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date other Property of the ~~Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation~~ Borrower or ~~incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~any Subsidiary.

Appears in 1 contract

Samples: Revolving Credit Agreement (World Acceptance Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom, unless: (1) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date and any amendments, extensions, renewals or substitutions thereof provided that the property subject to such Liens as amended, extended, renewed or substituted is not materially different from that initially subject to such Liens as determined by the Board of Directors of the ~~Notes~~Company in their good faith judgment; (b) Liens ~~granted after~~ securing Indebtedness under the ~~Issue Date of the Notes created in favor of the Securityholders of the Notes~~Credit Agreement; (c) Liens securing senior Indebtedness ~~which are~~ incurred pursuant to ~~extend~~clauses (11) or (12) of the definition of Permitted Indebtedness, ~~renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this~~ as defined in Section ~~3.1~~1.1; (d) Liens ~~created in substitution of or as replacements for~~ securing the Notes and any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedGuarantees; (e) Liens of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any ~~assets, created solely to secure obligations incurred to finance~~ Restricted Subsidiary of the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligationsCompany; (if) Liens ~~given~~ securing Indebtedness incurred to ~~secure the payment~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred without violation of ~~the purchase price incurred in connection with the acquisition (including acquisition through merger~~ this Indenture; provided, however, that such Liens do not extend to or ~~consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on~~ cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Kronos International Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ Restricted Subsidiary to create, incur, assume or suffer to exist any ~~property~~ Liens of ~~the Company~~ any kind against or upon any of its ~~Subsidiaries~~property or assets, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date and any extensions, renewals or replacements thereof; (B) Liens securing (x) Indebtedness incurred under the Senior Credit Facility and (y) Hedging Obligations so long as the only assets securing such Hedging Obligations are assets securing the Senior Credit Facility; (C) Liens securing the Notes and the Note Guarantees; (D) Liens securing intercompany Indebtedness of the ~~Notes; (b) Liens granted after the Issue Date~~ Company or a Restricted Subsidiary of the ~~Notes created in favor~~ Company on assets of any Subsidiary of the ~~Securityholders of the Notes;~~ Company; (cE) Liens securing Indebtedness ~~which are~~ that is incurred to ~~extend, renew or~~ refinance Indebtedness ~~which is~~ that was secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture that was incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute~~ Liens do not extend to or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Bedding Experts Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~Property (including, but not limited to, the Collateral), whether now owned or hereafter acquired; provided, ~~in order to secure any Indebtedness~~however, ~~without effectively providing~~ that the ~~Notes~~ foregoing restriction and limitation shall ~~be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~not apply to the following Liens: (a) Liens ~~existing as of~~ created under the ~~Issue Date of the Notes~~Collateral Documents; (b) Liens ~~granted after the Issue Date~~ existing as of the ~~Notes created in favor of the Securityholders of the Notes~~date hereof and reflected on Schedule 8.11 hereto; (c) Liens ~~securing Indebtedness which are incurred~~ existing on property at the time acquired by the Borrower or any Restricted Subsidiary thereof or existing on the property of a corporation at the time it becomes a Restricted Subsidiary, or placed upon property within 120 days after the date of acquisition thereof by the Borrower or any Restricted Subsidiary to ~~extend~~secure a portion of the purchase price thereof, ~~renew~~ but only if (i) such Lien shall attach solely to the property acquired, purchased or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~constructed and (ii) such Lien does not exceed the lesser of the fair market value or cost of such property; (d) Liens ~~created in substitution~~ constituting renewals, extensions or refundings of ~~or as replacements for any Lien~~ Liens permitted by clause ~~(a),~~ (b) or (c) ~~of this Section 3.1;~~ above, provided that ~~based on a good faith determination~~ the principal amount of the ~~Company, the property encumbered under~~ Indebtedness secured by any such ~~substitute~~ new Lien does not exceed the principal amount of the Indebtedness being renewed, extended or ~~replacement~~ refunded at the time of renewal, extension or refunding thereof and that such new Lien ~~is substantially similar in nature~~ attaches only to the same property ~~encumbered by the otherwise permitted Lien which is being replaced~~theretofore subject to such earlier Lien; (e) Liens ~~on any assets~~securing taxes, ~~created solely to secure obligations incurred to finance~~ assessments or governmental charges or levies, or the ~~refurbishment~~claims or demands of materialmen, ~~improvement or construction of such asset~~mechanics, ~~which obligations are incurred no later than 12 months after completion of such refurbishment~~carriers, ~~improvement or construction~~workmen, repairmen, warehousemen, landlords and ~~all renewals~~other like persons, ~~extensions, refinancings, replacements or refundings of such obligations~~provided that payment thereof is not at the time required by Section 8.3 hereof; (if) other Liens ~~given~~ incidental to ~~secure~~ the ~~payment~~ conduct of its business or the ~~purchase price~~ ownership of its property and assets when not incurred in connection with the ~~acquisition (including acquisition through merger~~ borrowing of money or ~~consolidation)~~ the obtaining of ~~any property, including Capital Lease transactions in connection with any such acquisition~~advances of credit, and ~~(ii) Liens existing on any property at~~ which do not in the ~~time of acquisition thereof or at~~ aggregate materially detract from the ~~time of acquisition by the Company or any~~ value of its ~~Subsidiaries~~ property or assets, or materially impair the use thereof in the operation of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofits business; (g) ~~pre-existing~~ attachment, judgment and other similar Liens arising in connection with court proceedings, provided that (i) execution or other enforcement of such Liens is effectively stayed, (ii) the claims secured thereby are being actively contested in good faith by appropriate proceedings, (iii) adequate reserves in conformity with GAAP have been provided on ~~assets acquired after~~ the ~~Issue Date~~ books of the ~~Notes~~Borrower or such Restricted Subsidiary, and (iv) the aggregate amount of the liabilities of the Borrower and all Restricted Subsidiaries so secured, including interest and penalties thereon, shall not be in excess of $100,000 at any one time outstanding; (h) Liens ~~in favor~~ granted to secure the Fixed Asset Financing, provided that such Liens (x) only extend to the fixed assets acquired with the proceeds of such Fixed Asset Financing, (y) only secure the original purchase price of such fixed assets, as reduced by repayments thereon, and (z) do not extend to or cover any other Property of the ~~Company~~ Borrower or any ~~of its Subsidiaries;~~Subsidiary; and (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing ~~xxxxxx~~the Second Lien Subordinated Debt permitted by Section 8.9 hereof, ~~swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m)~~ but only so long as such Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be remain subject to the ~~restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date~~ terms of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesIntercreditor Agreement.

Appears in 1 contract

Samples: Revolving Credit Agreement (World Acceptance Corp)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not~~ Create or suffer to exist, or permit any Subsidiary of any Borrower to create or ~~incur~~ suffer to exist, any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~Property, income or profits, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ at any time granted in favor of Administrative Agent for the ~~Issue Date~~ benefit of ~~the Notes~~Lenders; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges ~~for~~ (excluding any Lien imposed pursuant to any of the ~~then current year and taxes~~provisions of ERISA) not yet due, ~~assessments~~ or ~~governmental charges~~ being contested in the manner described in subsection 7.1.14 hereto, but only if in Administrative Agent's judgment such Lien would not ~~then delinquent~~reasonably be expected to adversely effect Administrative Agent's rights or the priority of Administrative Agent's lien on any Collateral; (oc) Liens ~~for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’~~arising in the ordinary course of the business of any Borrower or any of its Subsidiaries by operation of law or regulation, ~~laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations~~ but only if payment in respect of any such Lien is not at the ~~Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission~~ time required and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of whichsuch Liens do not, in the ~~opinion of counsel~~aggregate, ~~are such as to interfere with~~ materially detract from the ~~proper operation and development~~ value of the ~~affected property for~~ Property of any Borrower or any of its ~~intended~~ Subsidiaries or materially impair the use thereof in the ~~Company’s business or~~ operation of the business of any Borrower or any of its Subsidiaries; (td) ~~any defects~~ Purchase Money Liens securing Permitted Purchase Money Indebtedness; (e) subject to the terms of ~~title~~ the Intercreditor Agreement, Liens securing the New Senior Secured Notes as follows: (i) with respect to Equipment, Fixtures and ~~any terms, conditions, agreements, covenants, exceptions~~ owned real Property constituting Senior Noteholder Priority Collateral and ~~reservations~~ cash proceeds thereof which are held in ~~deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may~~ a segregated cash collateral account as provided in the ~~future acquire~~ New Senior Secured Notes Indenture, the Liens securing the New Senior Secured Notes are senior to the Liens in favor of Administrative Agent, on behalf of itself and Lenders; (ii) with respect to all Collateral other than Equipment, Fixtures and owned real Property constituting Senior Noteholder Priority Collateral and cash proceeds thereof which are held in a segregated cash collateral account as provided in the New Senior Notes Indenture, the Liens securing the New Senior Secured Notes are subordinated to the Liens in favor of Administrative Agent, on behalf of itself and Lenders; (f) such other Liens as appear on Exhibit 8.2.5 hereto ("Existing Liens") and liens securing any ~~property~~refinancing, ~~none~~ extension or renewal of ~~which~~Indebtedness permitted by clause (b) of subsection 8.2.3 so long as, in the ~~opinion~~ case of ~~counsel, materially adversely affects the operation of the Company’s properties~~ Borrowers and ~~those of its~~ their Domestic Subsidiaries, ~~taken as a whole~~such Liens do not extend to any assets other than those subject to Existing Liens and, in the case of Foreign Subsidiaries, such Liens do not extend to any assets other than assets of Foreign Subsidiaries; (ug) ~~rights reserved to~~ Liens incurred or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use deposits made in the ordinary course of ~~the electricity~~business in connection with (1) worker's compensation, ~~gas~~ social security, unemployment insurance and other like laws or (~~either natural or artificial~~2) ~~or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries~~ sales contracts, leases, statutory obligations, work in progress advances and other similar obligations not incurred in connection with the ~~issuance~~ borrowing of ~~tax-exempt state and local bonds for purposes~~ money or the payment of ~~financing, in whole or in part,~~ the ~~acquisition or construction~~ deferred purchase price of ~~property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate~~property; (wh) ~~Liens incurred in the creation~~ reservations, covenants, conditions, zoning and other land use regulations, title exceptions or ~~existence of leases made, or existing on property acquired,~~ encumbrances granted in the ordinary course of business, affecting real Property owned or leased by any Borrower or one of its Subsidiaries; provided that such exceptions do not in the aggregate materially interfere with the use of such Property in the ordinary course of such Borrower's or such Subsidiary's business; (i) judgment Liens that do not give rise to an Event of Default under subsection 10.1.15; and (xj) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably Liens securing ~~the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness incurred ~~after the Issue Date~~ in reliance on clause (j) of ~~the Notes and secured by~~ subsection 8.2.3; provided, that, such Liens ~~not permitted under this Section 3.1 does not exceed the greater~~ shall be only on assets of ~~(i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Foreign Subsidiaries.

Appears in 1 contract

Samples: Loan and Security Agreement (Jacuzzi Brands Inc)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create~~ Create, incur, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens ~~given~~ for taxes, assessments or other charges which (x) are not at the time delinquent or are thereafter payable without penalty, or (y) are being contested in good faith by appropriate proceedings, provided with respect to ~~secure~~ taxes, assessments or other charges referred to in clause (x) and clause (y), that adequate reserves with respect thereto are maintained on the ~~payment~~ books of the ~~purchase price incurred~~ Borrower and its Restricted Subsidiaries to the extent required in ~~connection~~ conformity with ~~the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and~~ GAAP; (ii) Liens ~~existing~~ in existence on the date hereof listed on Schedule III hereto, provided that no such Lien is spread to cover any additional property or to secure any additional Indebtedness after the date hereof except in accordance with provisions of the documents and instruments relating to the Indebtedness or other obligations secured by such Liens which (x) are in effect as of the date hereof, (y) are described on Schedule III and (z) do not purport to cover any Collateral. (iii) Liens on vessels arising in the event the use or title of such vessel is taken or requisitioned by any Governmental Authority; (iv) Liens securing judgments of less than $7,500,000 in the aggregate as to the Borrower and its Restricted Subsidiaries taken as a whole at any time, provided that no such Lien shall have been in existence more than thirty (30) days after the entry of the judgment, or execution thereof shall have been stayed or the payment thereof shall be covered in full by insurance on which the insurer has neither reserved the right to dispute, nor disputed, coverage; (v) Liens on any ~~property at~~ asset of the ~~time of acquisition thereof or at the time of acquisition by the Company~~ Borrower or any of its Restricted Subsidiaries existing at the time such Person is merged into or consolidated with the Borrower or any of its Restricted Subsidiaries, if (x) such merger or consolidation is permitted by this Agreement, and (y) such Lien was otherwise permitted by this Agreement and was not created in contemplation of such event; provided that no such Lien is spread to cover any ~~Person then owning~~ additional property or to secure any additional Indebtedness after the effective date of such ~~property whether~~ merger or ~~not such~~ consolidation; (vi) Liens on vessels and related assets existing ~~Liens were given~~ as of the date hereof and created to secure the ~~payment~~ financing or refinancing of the ~~purchase price~~ construction or reconstruction of such vessels, which financing or refinancing is guaranteed under the provisions of Title XI of the ~~property to which they attach; provided that with respect to clause (i)~~Merchant Marine Act of 1936, the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofas amended; (gvii) ~~pre~~Liens arising in connection with deposits of funds from time to time into the capital construction fund created pursuant to the Capital Construction Fund Agreement (no. MA-~~existing~~ CCF-370) dated October 21, 1977, as amended, between the Borrower and the United States of America, but only to the extent such Liens ~~on assets acquired after the Issue Date~~ arise solely out of ~~the Notes~~such agreement or out of borrowings of such deposits; (hviii) Liens in favor of the ~~Company~~ Agents or the Lenders to secure any or all of ~~its Subsidiaries~~the Borrower’s Obligations created under the Loan Documents; (iix) ~~purchase money~~ Other Liens ~~or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries~~ arising in the ordinary course of the business of the Borrower and its Restricted Subsidiaries viewed as a whole which (x) do not secure Indebtedness and (y) either (A) are being contested in good faith and with respect to ~~secure~~ which reserves are being maintained on the ~~purchase price~~ books of the Borrower and its Consolidated Restricted Subsidiaries in conformity with GAAP or (B) in the aggregate do not have, and are not reasonably likely to have, a Material Adverse Effect and will not reasonably likely materially impair the value of the Consolidated assets of the Borrower and its Consolidated Restricted Subsidiaries; (x) Liens on life insurance policies (including the cash surrender value thereof) securing Indebtedness permitted by subsection 5.02(a)(v); (xi) Liens securing Indebtedness of the Borrower and its Restricted Subsidiaries incurred solely in connection with the conversion into Financing Leases of operating leases of the Borrower and its Restricted Subsidiaries that are in existence on the date hereof on the property which is the subject of such operating lease; provided that such Liens do not at any time encumber any property other than such property, their earnings, other related assets having a value which is immaterial in relation to the value of such property, and the proceeds of such property and do not secure any other Indebtedness; (xii) Liens on property that is substituted for or replaces comparable property that was theretofore subject to ~~secure~~ a Lien permitted to exist under this subsection 5.02(b); (xiii) Liens on any asset leased by the Borrower or any of its Restricted Subsidiaries under a lease that is not a Financing Lease, securing the obligations of the Borrower or such Restricted Subsidiary thereunder; (xiv) Liens arising out of the refinancing, extension, renewal or refunding of any Indebtedness ~~incurred~~ permitted under subsection 5.02(a) and secured by any Lien permitted by this subsection 5.02(b); provided that (x) no such Lien is spread to cover any property other than the property securing such Indebtedness at the time of such refinancing, extension, renewal or refunding and (y) the principal amount of such Indebtedness is not increased to exceed the amount of the Indebtedness on the date hereof; (xv) purchase money Liens securing Indebtedness solely for the purpose of financing the acquisition, construction or improvement of property to be subject to such Liens, or Liens existing on any such property at the time of acquisition (other than any such Liens created in contemplation of such acquisition that do not secure the purchase price), or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount; provided, however, no such Lien shall extend to or cover any property other than the property being acquired, constructed or improved, or the proceeds or rents thereof, and no such extension, renewal or replacement shall extend to or cover any property, or the proceeds or rents thereof, not theretofore subject to the Lien being extended, renewed or replaced; (jxvi) ~~Liens on~~ the Designated Charters; and (xvii) any ~~property~~ Inter Company Charter so long as the same shall be subject and subordinate in ~~favor~~ all respects to (i) the lien of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations Ship Mortgage in respect of the ~~Company’s property or property of a Subsidiary for~~ Eligible Vessel that is the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such ~~Lien or~~ Inter Company Charter and (ii) ~~15% of Consolidated Net Worth calculated as~~ the rights of the ~~Issue Date of the Notes~~Collateral Agent as trustee mortgagee under such Ship Mortgage.

Appears in 1 contract

Samples: Credit Agreement (Crowley Newco CORP)

Limitation on Liens. The Company ~~covenants~~ shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind on or with respect to any of its property or assets, including any shares of stock or indebtedness of any Restricted Subsidiary, whether owned at the Closing Date or thereafter acquired, or any income, profits or proceeds therefrom, or assign or otherwise convey any right to receive income thereon, unless (a) in the case of any Lien securing Subordinated Debt, the Notes are secured by a Lien on such property, assets or proceeds that is senior in priority to such Lien and (b) in the case of any other Lien, the Notes are equally and ratably secured with the obligation or liability secured by such Lien. Notwithstanding the foregoing, the Company may, and ~~its Subsidiaries will not create~~ may permit any Restricted Subsidiary to, incur the following Liens ("Permitted Liens"): (i) Liens on property or ~~incur any Lien on any property~~ assets securing Permitted Warehouse Debt of the Company or any Restricted Subsidiary, other than Liens on Excess Spread Receivables related to such Permitted Warehouse Debt not created in favor of ~~its Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that~~ the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~lenders under the related Warehouse Facility; (aii) Liens incurred in connection with a securitization or sale of Receivables, other than Liens on Excess Spread Receivables related to such securitization or sale transaction that were not created at the time of such securitization or sale transaction; (iii) Liens existing as of the ~~Issue Date of the Notes~~Closing Date; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (eiv) Liens on any ~~assets, created solely to secure obligations incurred to finance the refurbishment, improvement~~ property or ~~construction~~ assets of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens a Restricted Subsidiary granted in favor of the Company or any ~~of its Subsidiaries~~Restricted Subsidiary; (iv) Liens securing the Notes; (vi) Liens representing the interest or title of lessors under Capitalized Lease Obligations or Liens securing purchase money ~~Liens~~ mortgages or purchase money security ~~interests upon~~ interests, so long as the aggregate amount secured by such Liens does not exceed the amount permitted by clause (vi) of the definition of "Permitted Debt"; (vii) Liens securing Acquired Debt created prior to (and not in connection with or in ~~any property acquired or held~~ contemplation of) the incurrence of such Debt by the Company or any Restricted Subsidiary; provided that such Lien does not extend to any property or assets of ~~its Subsidiaries~~ the Company or any Restricted Subsidiary other than the property and assets acquired in connection with the incurrence of such Acquired Debt; (viii) Liens (other than on any Excess Spread Receivables) securing obligations under Hedging Obligations permitted to be incurred pursuant to clause (v) of the definition of "Permitted Debt"; (ix) statutory Liens or landlords', carriers', warehouseman's, mechanics', suppliers', materialmen's, repairmen's or other like Liens arising in the ordinary course of business with respect to ~~secure the purchase price~~ (A) amounts not yet delinquent or (B) amounts being contested in good faith by appropriate proceedings or (C) an aggregate amount at any one time not in excess of ~~such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property~~$1 million; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (nx) Liens for taxes, ~~assessments~~ assessments, government charges or ~~governmental charges for the then current year~~ claims that are being contested in good faith by appropriate proceedings promptly instituted and ~~taxes, assessments or governmental charges not then delinquent~~diligently conducted; (oxi) Liens ~~for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements~~ incurred or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than deposits made to secure the ~~payment~~ performance of ~~money~~tenders, ~~none of which~~bids, ~~in the opinion of counsel~~leases, ~~are such as to interfere with the proper operation~~ statutory obligations, surety and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.appeal bonds,

Appears in 1 contract

Samples: First Supplemental Indenture (Dvi Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, assume or ~~incur~~ suffer to exist any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~Property (including, but not limited to, the Collateral), whether now owned or hereafter acquired; provided, ~~in order to secure any Indebtedness~~however, ~~without effectively providing~~ that the ~~Notes~~ foregoing restriction and limitation shall ~~be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~not apply to the following Liens: (a) Liens ~~existing as of~~ created under the ~~Issue Date of the Notes~~Collateral Documents; (b) Liens ~~granted after the Issue Date~~ existing as of the ~~Notes created in favor of the Securityholders of the Notes~~date hereof and reflected on Schedule 8.11 hereto; (c) Liens ~~securing Indebtedness which are incurred~~ existing on property at the time acquired by the Borrower or any Restricted Subsidiary thereof or existing on the property of a corporation at the time it becomes a Restricted Subsidiary, or placed upon property within 120 days after the date of acquisition thereof by the Borrower or any Restricted Subsidiary to ~~extend~~secure a portion of the purchase price thereof, ~~renew~~ but only if (i) such Lien shall attach solely to the property acquired, purchased or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~constructed and (ii) such Lien does not exceed the lesser of the fair market value or cost of such property; (d) Liens ~~created in substitution~~ constituting renewals, extensions or refundings of ~~or as replacements for any Lien~~ Liens permitted by clause ~~(a),~~ (b) or (c) ~~of this Section 3.1;~~ above, provided that ~~based on a good faith determination~~ the principal amount of the ~~Company, the property encumbered under~~ Indebtedness secured by any such ~~substitute~~ new Lien does not exceed the principal amount of the Indebtedness being renewed, extended or ~~replacement~~ refunded at the time of renewal, extension or refunding thereof and that such new Lien ~~is substantially similar in nature~~ attaches only to the same property ~~encumbered by the otherwise permitted Lien which is being replaced~~theretofore subject to such earlier Lien; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges ~~for~~ or levies, or the ~~then current year~~ claims or demands of materialmen, mechanics, carriers, workmen, repairmen, warehousemen, landlords and ~~taxes~~other like persons, ~~assessments or governmental charges~~ provided that payment thereof is not ~~then delinquent~~at the time required by Section 8.3 hereof; (of) other Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect incidental to the conduct of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its ~~intended use in the Company’s~~ business or the ~~business of any~~ ownership of its ~~Subsidiaries; (t) any defects~~ property and assets when not incurred in connection with the borrowing of ~~title~~ money or the obtaining of advances of credit, and ~~any terms, conditions, agreements, covenants, exceptions and reservations~~ which do not in ~~deeds or other instruments under which~~ the ~~Company or any~~ aggregate materially detract from the value of its ~~Subsidiaries has acquired~~ property or ~~may~~ assets, or materially impair the use thereof in ~~the future acquire any property, none of which, in the opinion of counsel, materially adversely affects~~ the operation of ~~the Company’s properties and those of~~ its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (vg) attachment, judgment and other similar Liens ~~created or assumed by the Company or any of its Subsidiaries~~ arising in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries~~court proceedings, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of that (i) ~~15% of Consolidated Net Worth calculated as of the date of the creation~~ execution or ~~incurrence~~ other enforcement of such ~~Lien or~~ Liens is effectively stayed, (ii) ~~15% of Consolidated Net Worth calculated as~~ the claims secured thereby are being actively contested in good faith by appropriate proceedings, (iii) adequate reserves in conformity with GAAP have been provided on the books of the ~~Issue Date of the Notes.~~Borrower or such Restricted Subsidiary, and

Appears in 1 contract

Samples: Revolving Credit Agreement (World Acceptance Corp)

Limitation on Liens. (a) The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom for purposes of security unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds or such right to receive income or profits, as the case may be, that is senior in priority to such Liens; and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured. (b) Notwithstanding the foregoing, ~~except~~Section 4.18(a) shall not apply to the following Liens: (ai) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; (ii) Liens securing Senior Debt, Guarantor Senior Debt or any guarantees of Senior Debt by any Subsidiary Guarantor; (iii) Liens securing the Notes; (biv) Liens ~~granted after the Issue Date~~ of the ~~Notes created in favor~~ Company or a Restricted Subsidiary of the ~~Securityholders~~ Company on assets of any Restricted Subsidiary of the ~~Notes~~Company; (cv) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance~~ Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1;~~Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (dA) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature are not materially less favorable to the ~~property encumbered by~~ Holders and are not materially more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens ~~shall be given within 12 months after such acquisition and shall attach solely to~~ in respect of the ~~property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;~~Indebtedness being Refinanced and (gB) ~~pre-existing Liens on~~ do not extend to or cover any property or assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries not securing the Indebtedness so Refinanced; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (lvi) Liens securing ~~xxxxxx, swaps, derivatives~~ other Indebtedness or other obligations as long as the amount of outstanding Indebtedness or other obligations secured by such Liens do not exceed at any one time outstanding the greater of (A) $25.0 million and ~~other similar transactions entered into in~~ (B) 5% of Consolidated EBITDA of the ~~ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges~~ Company for the ~~then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens~~ most recently ended Four Quarter Period for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, which internal financial statements are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessavailable; and (xvii) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Del Monte Foods Co)

Limitation on Liens. ~~The Company covenants that~~ With respect to the ~~Company and its Subsidiaries will not create or incur any Lien on any property~~ Notes, Section 3.09 of the ~~Company~~ Base Indenture is hereby amended to be replaced with the following: The Issuer will not, nor will it permit any Subsidiary to, issue, assume or guarantee any Debt secured by a mortgage, lien, pledge or other encumbrance (herein referred to as a “Mortgage”) upon any Principal Property or upon any Debt or Capital Stock of ~~its Subsidiaries, whether now owned or hereafter acquired, in order to secure~~ any ~~Indebtedness~~Subsidiary which owns any Principal Property, without ~~effectively~~ providing that the Notes ~~shall~~ will be secured by such Mortgage equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~with (or prior to) any other Debt thereby secured, ~~except~~except that the foregoing provisions shall not apply to: (a) ~~Liens~~ Mortgages existing ~~as of~~ on the ~~Issue Date of~~ issue date (other than Mortgages securing Debt outstanding under the ~~Notes~~Revolving Credit Facilities); (b) ~~Liens granted after~~ Mortgages existing at the ~~Issue Date~~ time an entity becomes a Subsidiary of the ~~Notes created in favor~~ Issuer or is merged into or consolidated with the Issuer or a Subsidiary of the ~~Securityholders~~ Issuer (provided that such Mortgages were not Incurred in contemplation of ~~the Notes~~such transaction); (c) ~~Liens securing Indebtedness which are incurred to extend, renew~~ Mortgages in favor of the Issuer or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~any Subsidiary; (d) ~~Liens created in substitution~~ Mortgages on property to secure Debt Incurred prior to, at the time of or ~~as replacements~~ within 180 days after the construction, development or improvement of the property or after the completion of construction of the property, for ~~any Lien permitted by clause~~ the purpose of financing all or part of the cost of construction, development or improvement (~~a), (b) or (c) of this Section 3.1;~~ provided that ~~based on a good faith determination of the Company, the~~ such Mortgages are limited to such property ~~encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~and improvements thereon); (e) ~~Liens~~ Mortgages on ~~any assets~~property, ~~created solely~~ shares of stock or Debt to secure ~~obligations incurred to finance the refurbishment~~Debt Incurred prior to, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of or within 180 days after the acquisition ~~thereof~~ of the property, shares of stock or at Debt, for the ~~time~~ purpose of ~~acquisition by the Company~~ financing all or ~~any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment~~ part of the purchase price of the ~~property to which they attach;~~ property, shares of stock or Debt (provided that ~~with respect~~ such Mortgages are limited to ~~clause~~ such property and improvements thereon or the shares of stock or Debt so acquired); (i)f) Mortgages in favor of the United States of America, ~~the Liens shall be given within 12 months after such acquisition and shall attach solely~~ any state, any other country or any political subdivision to ~~the property acquired~~ secure partial, progress, advance or ~~purchased and~~ other payments pursuant to any ~~improvements then~~ contract or ~~thereafter placed thereon and any proceeds thereof~~statute; (g) ~~pre-existing Liens~~ Mortgages on ~~assets acquired after the Issue Date~~ property of the ~~Notes~~Issuer or any Subsidiary securing Debt Incurred in connection with financing all or part of the cost of operating, constructing or acquiring projects, provided that the Debt is recourse only to such property (other than Debt permitted to be Incurred under clause (o) below); (h) ~~Liens in favor~~ liens on property or assets of the ~~Company~~ Issuer or any Subsidiary consisting of ~~its Subsidiaries~~marine Mortgages provided for in Title XI of the Merchant Marine Act of 1936 or foreign equivalents; (i) ~~purchase money Liens~~ Mortgages or ~~purchase money security interests upon or in any~~ easements on property ~~acquired or held by~~ of the ~~Company~~ Issuer or any Subsidiary Incurred to finance such property on a tax-exempt basis that do not materially detract from the value of ~~its Subsidiaries~~ property or assets or materially impair the use thereof; (j) Mortgages on equipment of the Issuer or any Subsidiary granted in the ordinary course of business to ~~secure~~ the ~~purchase price of~~ Issuer’s or such ~~property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of~~ Subsidiary’s client at which such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such propertyequipment is located; (k) ~~the pledge or assignment~~ Mortgages securing Debt Incurred in the ordinary course of business in an aggregate principal amount that, when taken together with Indebtedness Incurred pursuant to Section 4.03(h) of ~~electricity~~this Supplemental Indenture, ~~gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper~~does not exceed $50,000,000 at any one time outstanding; (l) ~~Liens securing xxxxxx~~Mortgages in favor of the Notes; (m) Mortgages in respect to letters of credit, ~~swaps, derivatives and other~~ bank guarantees or similar ~~transactions entered into~~ instruments issued in the ordinary course of business; (~~m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (~~n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, ~~renewal, substitution~~ renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any ~~Lien~~ Mortgage referred to in ~~this Section 3.1. Notwithstanding anything~~ the foregoing clauses (a) to (m) inclusive or of any Debt secured thereby, provided that the ~~contrary~~ extension, renewal or replacement secures the same or a lesser principal amount of Debt (plus any premium or fee payable in ~~this Section 3.1~~connection with such extension, renewal or replacement) and, provided, further, that such Mortgage shall be limited to substantially the ~~Company~~ same property which secured the Mortgage extended, renewed or replaced (plus improvements on such property); (o) Mortgages securing Debt in respect of any Project Financing Incurred by any Project Financing Subsidiary, provided that such Mortgages may not be on any (i) Principal Property or (ii) proved oil and gas reserves, in each case owned or held by the Issuer or any Subsidiary as of ~~its Subsidiaries may, without equally and ratably~~ the issue date; and (p) other Mortgages on Principal Property or on any Debt or Capital Stock of any Subsidiary securing ~~the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto,~~ Debt the aggregate principal amount of ~~Indebtedness incurred after~~ which, when taken together with the ~~Issue Date~~ aggregate principal amount of ~~the Notes and secured by Liens not permitted under this Section 3.1~~ all other then outstanding Aggregate Debt, does not exceed the greater of (i) 1510% of the Issuer’s Consolidated Net ~~Worth calculated as of the date of the creation or incurrence of such Lien~~ Assets or (ii) ~~15%~~ $1,750,000,000 at the time of ~~Consolidated Net Worth calculated as~~ creation, Incurrence or assumption of such Mortgages after giving effect to the receipt and application of the ~~Issue Date~~ proceeds of the ~~Notes~~Debt secured thereby.

Appears in 1 contract

Samples: Seventh Supplemental Indenture (Murphy Oil Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets or any proceeds therefrom of the Company or any of its ~~Subsidiaries,~~ Restricted Subsidiaries whether ~~now~~ owned on the Issue Date or ~~hereafter acquired~~acquired after the Issue Date, in ~~order~~ each case to secure ~~any~~ Indebtedness, ~~without effectively providing~~ unless: (1) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to the Notes, the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~except for (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Senior Debt; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Restricted Subsidiary of the Company on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction,~~ Refinance any Indebtedness that was secured by a Lien permitted under this Indenture and ~~all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price~~ that has been incurred in ~~connection~~ accordance with the ~~acquisition (including acquisition through merger~~ provisions of this Indenture; provided, however, that such Liens do not extend to or ~~consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on~~ cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xf) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Dresser Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any Guarantor to create, incur or ~~incur~~ otherwise cause or suffer to exist or become effective any ~~Lien on~~ Liens of any kind upon any property or assets of the Company or any ~~of its Subsidiaries~~Guarantor, whether ~~now~~ owned on the Issue Date or ~~hereafter acquired~~acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order to secure~~ the case of any Lien securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Lien; and (2) in all other cases, the Notes or the Guarantees of such Guarantor, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date and amendments thereof; provided that any such Lien, as amended, is no less favorable to the Holders of Notes in any material respect and not more favorable to the lienholders in any material respect than the Lien existing as of the ~~Notes~~Issue Date, in each case as determined by the Board of Managers of the Company in their reasonable and good faith judgment; (b) Liens ~~granted after the Issue Date~~ securing Indebtedness incurred pursuant to clause (2), (16), (21), (22) or (23)(A) of the ~~Notes created in favor~~ definition of ~~the Securityholders of the Notes~~"Permitted Indebtedness"; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ of the ~~Company,~~ Company or a Restricted Subsidiary of the Company that is a Guarantor on any property ~~encumbered under~~ or assets of any ~~such substitute~~ Restricted Subsidiary of the Company or ~~replacement Lien~~ Liens of a Restricted Subsidiary that is ~~substantially similar in nature to the~~ not a Guarantor on any property ~~encumbered by the otherwise permitted Lien which~~ or assets of any other Restricted Subsidiary that is ~~being replaced~~not a Guarantor; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Indebtedness which is incurred to ~~finance~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the ~~refurbishment~~provisions of this Indenture; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders of Notes in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the ~~purchase price incurred~~ Indebtedness being Refinanced, in ~~connection with~~ each case as determined by the ~~acquisition (including acquisition through merger or consolidation)~~ Board of ~~any property, including Capital Lease transactions~~ Managers of the Company in ~~connection with any such acquisition,~~ their reasonable and good faith judgment; and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries;~~ Restricted Subsidiaries not securing the Indebtedness so Refinanced; provided, further, that the foregoing subclauses (i) ~~purchase money~~ and (ii) of this clause (e) shall not apply to Liens securing Indebtedness incurred to Refinance (A) any Senior Secured Indebtedness of any Person who is an Affiliate of the Company (but not a Restricted Subsidiary of the Company) (1) existing at the time such Affiliate becomes a Restricted Subsidiary of the Company that is a Guarantor or ~~purchase money security interests upon~~ merges or consolidates with the Company or any Guarantor or (2) assumed in ~~any property acquired or held~~ connection with the acquisition of substantially all of the assets of such Affiliate by the Company or ~~any~~ a Guarantor, which Indebtedness in each case of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; clause (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial1) or ~~steam, accounts receivable or customers’ installment paper;~~ (l2) ~~Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens~~ was not incurred by such Affiliate in connection with ~~an acquisition of assets~~ or ~~a project financed on a non-recourse basis; (n) Liens for taxes, assessments~~ in anticipation or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business contemplation of any ~~of its Subsidiaries;~~ such acquisition, merger or consolidation or (tB) ~~any defects of title and any terms~~the Senior Secured Notes; provided, ~~conditions~~however, ~~agreements~~that, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to the immediately foregoing proviso, (A) immediately after any ~~other rights concerning electricity~~such Refinancing, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company could incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.12 and (B) immediately before and after any such transaction no Default or ~~any~~ Event of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessDefault exists under this Indenture; and (xf) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Huntsman LLC)

Limitation on Liens. The ~~Company covenants~~ Indenture shall provide that the Company will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Restricted Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens upon their respective assets, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~ except for (a) Liens ~~existing as of~~ securing Indebtedness under the ~~Issue Date of the Notes;~~ Credit Agreement, (b) ~~Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes;~~ Permitted Liens, (c) Liens securing Acquired Indebtedness, (d) Liens existing on the Issue Date, (e) Liens securing Indebtedness ~~which are~~ to the extent incurred to ~~extend~~refinance, replace, renew or ~~refinance~~ refund secured Indebtedness ~~which is secured by~~ existing on the Issue Date or Acquired Indebtedness, (f) Liens securing pollution control bonds and industrial revenue bonds, (g) Liens securing Indebtedness permitted to be incurred ~~under this Section 3.1;~~ pursuant to clauses (~~d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b~~viii) or (cix) of ~~this Section 3.1; provided that based on a good faith determination~~ the definition of Permitted Indebtedness, (h) Liens securing Indebtedness pursuant to clauses (vii) or (xi) of the ~~Company~~definition of Permitted Indebtedness; provided, ~~the property encumbered under any~~ however, that if such ~~substitute or replacement Lien~~ Indebtedness is ~~substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations~~ incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price cost of the property subject to ~~which they attach; provided that with respect to clause~~ a Lien securing such Indebtedness, the principal amount of the Indebtedness secured by such Lien shall not exceed 100% of the cost of the property subject thereto plus related financing costs, (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the ~~Company or~~ Trustee and the trustee in respect of any other outstanding indebtedness of ~~its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; Company, (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries granted in connection with the ~~issuance~~ redemption of ~~tax-exempt state and local bonds for purposes of financing, in whole or in part,~~ the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases madeOld Notes, or ~~existing on property acquired, in the ordinary course of business; and~~ (xk) any replacement, extension, renewal, ~~substitution~~ amendment or ~~replacement (or successive extensions, renewals or replacements)~~modification, in whole or in part, of any Lien ~~referred to in this Section 3.1. Notwithstanding anything~~ described above; provided that to the ~~contrary in this Section 3.1,~~ extent any such clause limits the ~~Company and any of its Subsidiaries may, without equally and ratably securing~~ amount secured or the ~~Notes, create or incur Liens which would otherwise be~~ assets subject to such Liens, no extension or renewal will increase the ~~restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal~~ amount ~~of Indebtedness incurred after the Issue Date of the Notes and~~ or assets secured by ~~Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation~~ or ~~incurrence of~~ subject to such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Liens.

Appears in 1 contract

Samples: Credit Agreement (Gaylord Container Corp /De/)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any of the Restricted Subsidiaries to, create, incur, assume or ~~incur~~ suffer to exist any Lien on upon any property or assets of any kind (real or personal, tangible or intangible) of the ~~Company~~ Borrower or any ~~of its Subsidiaries~~Restricted Subsidiary, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ arising under the Credit Documents to secure the Obligations or permitted in respect of any Mortgaged Property by the terms of the ~~Issue Date of the Notes~~applicable Mortgage; (b) ~~Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~Permitted Liens; (c) Liens securing ~~Indebtedness which are incurred~~ Capital Leases and Purchase Money Debt permitted by Section 9.1(c); provided that (i) such Liens attach concurrently with or within 180 days after the acquisition, construction or improvement (as applicable) financed thereby, and (ii) such Liens attach only to ~~extend~~the property under such Capital Leases or acquired, ~~renew~~ constructed or ~~refinance Indebtedness which is secured by Liens permitted~~ improved with such Purchase Money Debt, together with any improvements, fixtures or accessions to ~~be incurred under this Section 3.1~~such property and the proceeds of such property, improvements, fixtures or accessions; (d) Liens ~~created~~ to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) as a whole, or in ~~substitution~~ part, of ~~or as replacements for~~ any Indebtedness secured by any Lien permitted by ~~clause~~ this Section 9.2; provided, however, that (ax) such new Lien shall be limited to all or part of the same type of property that secured the original Lien (plus improvements on and accessions to such property), (by) or the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (cA) ~~of this Section 3.1; provided that based on a good faith determination~~ the outstanding principal amount or, if greater, committed amount of the ~~Company~~applicable Indebtedness at the time the original Lien became a Lien permitted hereunder, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement and (z) on the date of the incurrence of the Indebtedness secured by such Liens, the ~~property encumbered under~~ grantors of any such ~~substitute~~ Liens shall not be any different than the grantors of the Liens securing the debt being Refinanced, refunded, extended, renewed or ~~replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being~~ replaced; (e) Liens solely on any ~~assets, created solely to secure obligations incurred to finance~~ cxxx xxxxxxx money deposits made by the ~~refurbishment, improvement~~ Borrower or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment any of the ~~purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions~~ Restricted Subsidiaries in connection with any ~~such acquisition, and~~ letter of intent or purchase agreement permitted hereunder; (iif) Liens ~~existing~~ on ~~any property at~~ insurance policies and the ~~time of acquisition~~ proceeds thereof ~~or at~~ securing the ~~time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment~~ financing of the ~~purchase price of the property to which they attach; provided that~~ premiums with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofthereto; (g) ~~pre-existing~~ Liens ~~on assets acquired after~~ securing the ~~Issue Date of the Notes;~~Permitted Second Lien Obligations and any Permitted Refinancing Indebtedness to Refinance such Permitted Second Lien Obligations; and (h) ~~Liens in favor~~ any Lien on any Property of the ~~Company~~ Borrower or any ~~of its Subsidiaries;~~ Subsidiary existing on the Closing Date and set forth in Schedule 9.2 and any renewals, replacements or extensions thereof; provided that (i) ~~purchase money Liens or purchase money security interests upon or in~~ such Lien shall not apply to any ~~property acquired or held by~~ other Property of the ~~Company~~ Borrower or any ~~of its Subsidiaries in~~ other Subsidiary (other than proceeds and accessions and additions to such property) and (ii) such Lien shall secure only those obligations which it secures on the ~~ordinary course of business~~ Closing Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof. This Section 9.2 shall be construed to ~~secure~~ allow the ~~purchase price~~ above Liens to cover and encumber all improvements, fixtures and/or accessions to the property which is permitted to be subject to such Liens and all proceeds of such property ~~or to secure Indebtedness incurred solely~~ (including any insurance for ~~the purpose of financing the acquisition of~~ such property~~; (j~~) ~~Liens on any property~~ as determined in ~~favor of~~ accordance with the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives UCC and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesapplicable law.

Appears in 1 contract

Samples: Senior Secured Term Loan Credit Agreement (Lilis Energy, Inc.)

Limitation on Liens. The Company ~~covenants that the Company and its Subsidiaries~~ will ~~not create or incur any Lien on any property of the Company or~~ not, nor will it permit any of its ~~Subsidiaries~~Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property or assets, whether now owned or hereafter acquired, ~~in order~~ or upon any income or profits therefrom, or acquire any property pursuant to ~~secure~~ any ~~Indebtedness~~conditional sale, ~~without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien~~lease purchase or other title retention agreement, except: (a) Liens ~~existing as of~~ created pursuant to the ~~Issue Date of~~ Security Documents or securing the Notes, the Letter of Credit Obligations, the Acceptance Obligations and all amendments, extensions, renewals and substitutions thereof; (b) Liens ~~granted after~~ existing on the ~~Issue Date of~~ Closing Date, not otherwise permitted under this Agreement, described in Schedule 10.5 hereto, securing the ~~Notes created~~ Indebtedness described in ~~favor of~~ such Schedule, and extensions, renewals and substitutions thereof, provided that the ~~Securityholders of~~ principal amount so secured is not increased and the ~~Notes~~Lien is not extended to any other property; (c) Liens ~~securing Indebtedness~~ for taxes and duties, assessments, governmental charges or levies not yet due or which are ~~incurred to extend~~being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, ~~renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~if adequate reserves with respect thereto are maintained on the books of the Company and its Subsidiaries in accordance with GAAP; (d) Liens ~~created~~ incurred in ~~substitution~~ the ordinary course of ~~or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ and incidental to the conduct of the ~~Company~~business of the Company and its Subsidiaries or the ownership of its property, including, without limitation, Liens incurred in connection with the sale, lease, transfer or other disposition of any credit card receivable of the Company or any of its Subsidiaries and Liens for workmen's compensation, bids, tenders, lessors, vendors, bank deposits, trade letters of credit and trust receipts, which were not incurred in connection with the borrowing of money and which do not in the aggregate materially detract from the value of the property ~~encumbered under any such substitute~~ of the Company and its Subsidiaries, taken as a whole, or ~~replacement Lien is substantially similar~~ materially impair the use thereof in ~~nature to~~ the ~~property encumbered by~~ operation of the ~~otherwise permitted Lien which is being replaced~~business of the Company and its Subsidiaries; (e) Liens imposed by law in favor of mechanics, repairmen, carriers or warehousemen for sums not yet due or which are being contested in good faith and by appropriate proceedings promptly initiated and diligently conducted, if adequate reserves with respect thereto are maintained on ~~any assets, created solely to secure obligations incurred to finance~~ the ~~refurbishment, improvement or construction~~ books of ~~such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction,~~ the Company and ~~all renewals, extensions, refinancings, replacements or refundings of such obligations;~~its Subsidiaries in accordance with GAAP; 65 59 (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (iif) Liens existing on ~~any~~ property or assets of a Person immediately prior to its becoming a Subsidiary of the Company and which Lien was not created, incurred or assumed in anticipation thereof, provided that such Lien shall at all times be confined solely to the property subject thereto at the time such Person becomes a Subsidiary of ~~acquisition~~ the Company; (g) Liens securing Indebtedness of the Company and its Subsidiaries (and any refinancings, refundings, renewals or extensions thereof on terms no less favorable (taken as a whole) to the Company or at such Subsidiary, as the ~~time~~ case may be, provided that the principal amount of such Indebtedness is not increased) incurred after the Closing Date solely for the purpose of financing the acquisition by the Company or any of its Subsidiaries of ~~any Person then owning~~ real or personal property or solely for the purpose of financing the cost of construction or improvements to or on real or personal property, or Liens existing on such property ~~whether or not such existing Liens were given to secure~~ so acquired at the ~~payment~~ time of ~~the purchase price of the property to which they attach;~~ acquisition thereof, provided ~~that with respect to clause~~ that: (i~~), the Liens~~ ) each such Lien shall at all times be ~~given within 12 months after such acquisition and shall attach~~ confined solely to the property ~~acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof~~so acquired; (gii) ~~pre-existing Liens on assets acquired after~~ the ~~Issue Date~~ principal amount of Indebtedness secured by each such Lien shall at no time exceed the lesser of (A) the cost to such Person of the ~~Notes;~~property subject thereto or (B) the fair value of such property (as determined in good faith by the Board of Directors of such Person) at the time of the acquisition thereof or completion of construction thereon. (h) Liens ~~in favor~~ solely constituting the right of ~~the Company~~ any other Person to a share of any licensing royalties (pursuant to a licensing agreement or ~~any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held~~ other related agreement entered into by the Company or any of its Subsidiaries with such Person in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company~~’s property~~ 's or ~~property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s~~such Subsidiary's business) ~~zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than~~ otherwise payable to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its ~~Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its~~ Subsidiaries, ~~taken as a whole; (u) rights reserved~~ provided that such right shall have been conveyed to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed such Person for consideration received by the Company or ~~any~~ such Subsidiary on an arm's-length basis; and (i) in the case of ~~its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of~~ real property ~~to be used~~ owned by the Company or any of its Subsidiaries, ~~provided the~~ easements, rights of way, restrictive covenants, encroachments and other non-monetary Liens ~~are limited to the property financed and the related real estate; (w)~~ which Liens ~~incurred~~ would not have, individually or in the ~~creation~~ aggregate, a Material Adverse Effect. For purposes of this subsection 10.5, any Person becoming a Subsidiary of the Company after the date hereof shall be deemed to have incurred all of its then outstanding Liens at the time it becomes a Subsidiary of the Company, and any Person extending, renewing or ~~existence~~ refunding any Indebtedness secured by any Lien shall be deemed to have incurred such Lien at the time of ~~leases made, or existing on property acquired, in the ordinary course of business; and (x) any~~ such extension, ~~renewal, substitution~~ renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesrefunding.

Appears in 1 contract

Samples: Credit Agreement (Polo Ralph Lauren Corp)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any other Restricted Person to, create, assume or ~~incur~~ permit to exist any Lien ~~on any property of the Company~~ upon or with respect to any of its ~~Subsidiaries, whether~~ properties or assets now owned or hereafter acquired, ~~in order~~ except the following Liens (to ~~secure any Indebtedness~~the extent permitted by this Section, ~~without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~herein called “Permitted Liens”): (a) Liens existing as on the date of this Agreement and listed in the ~~Issue Date of the Notes~~Disclosure Schedule; (b) Liens ~~granted after~~ imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due or the ~~Issue Date~~ validity of which is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the ~~Notes created~~ books of any Restricted Person in ~~favor of~~ accordance with GAAP or (ii) which could not, individually or in the ~~Securityholders of the Notes~~aggregate be reasonably expected to have a Material Adverse Effect; (c) ~~Liens securing Indebtedness which are incurred to extend~~pledges or deposits of cash or securities under worker’s compensation, ~~renew~~ unemployment insurance or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~other social security legislation; (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) including Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) property of any ~~property~~Restricted Person in the possession of storage facilities, ~~including Capital Lease transactions in connection with any such acquisition, and (ii~~pipelines or barges) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries arising in the ordinary course of business for amounts (i) which are not more than sixty (60) days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect; (e) deposits of cash or securities to secure the ~~purchase price~~ performance of ~~such property or to secure Indebtedness incurred solely~~ bids, trade contracts (other than for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiringborrowed money), ~~constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity~~leases, ~~gas (either natural or artificial) or steam~~statutory obligations, ~~accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx~~surety and appeal bonds, ~~swaps, derivatives~~ performance bonds and other ~~similar transactions entered into~~ obligations of a like nature incurred in the ordinary course of business; (mf) Liens ~~incurred~~ on deposits of cash or securities in ~~connection with~~ favor of the seller of any property intended to be acquired in an ~~acquisition of assets or a project financed on a non-recourse basis~~Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment; (ng) Liens ~~for taxes~~arising pursuant to customary provisions in joint venture agreements or arrangements, ~~assessments~~ limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or ~~governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent~~other similar agreement; (oh) ~~Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’~~easements, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-~~way~~ way, restrictions and other similar ~~purposes; (s)~~ encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning ~~ordinances, regulations, reservations,~~ restrictions, ~~covenants~~easements, ~~party wall agreements~~licenses, ~~conditions~~ restrictions on the use of ~~record and other encumbrances, other than to secure the payment of money, none of~~ real property or minor imperfections in title thereto which, in the ~~opinion of counsel~~aggregate, are ~~such as to~~ not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ~~proper operation and development~~ ordinary conduct of ~~the affected property for its intended use in the Company’s business or~~ the business of any ~~of its Subsidiaries~~Restricted Person; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (ui) rights reserved to or vested in ~~others~~ any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to ~~take~~ revoke or ~~receive~~ terminate any ~~part of the electricity~~such right, ~~gas~~ power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process; (~~either natural~~ j) rights reserved to or ~~artificial), steam~~ vested by Law in any Governmental Authority to control or regulate in any ~~by-products generated or produced by or from~~ manner any of the ~~Company’s~~ properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws; (k) rights reserved to the grantors of ~~its Subsidiaries’~~ any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith; (l) inchoate Liens in respect of pending litigation or with respect to ~~any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are~~ a judgment that has not resulted in ~~use in the ordinary course~~ an Event of ~~the electricity, gas (either natural or artificial) or steam business~~Default under Section 8.01; (vm) statutory Liens in respect of payables; (n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or ~~assumed by the Company or any of its Subsidiaries~~ in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the~~ such acquisition or ~~construction~~ such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property of ~~property to be used by~~ the ~~Company~~ Borrower or any Subsidiary, and (iii) such Lien shall secure only those obligations which it secures on the date of ~~its Subsidiaries~~such acquisition or the date such Person becomes a Subsidiary, ~~provided~~ as the ~~Liens are limited to the property financed and the related real estate~~case may be; (wo) Liens ~~incurred in the creation or existence of leases made~~securing Indebtedness permitted by Sections 7.01(e), or ~~existing~~ 7.01(h); (p) Liens on cash margin collateral securing Hedging Contracts permitted under Section 7.10; (q) Liens in respect of operating leases covering only the property ~~acquired~~subject thereto; (r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in (i) prior to the consummation of the ETP Merger, ETP and (ii) upon and after the consummation of the ETP Merger, SXL) and joint ventures securing Indebtedness or other obligations of such Unrestricted Person or joint venture; (s) Liens securing (i) Revolving Obligations in an original principal amount not to exceed $1,500,000,000, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the obligations under this Agreement, the Senior Note Obligations or Senior Note Refinancing Indebtedness, (iii) the Obligations and/or any Term Loan Refinancing Indebtedness and (iv) obligations for other Indebtedness incurred pursuant to Section 7.01(l); (t) Liens, (i) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Restricted Person in the ordinary course of business, and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to the terms of this Agreement; and (xu) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any ~~extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1~~time outstanding. Notwithstanding ~~anything~~ any of the foregoing to the ~~contrary in this Section 3.1~~contrary, other than as permitted by clause (s) above, no Liens of the ~~Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions~~ kind set forth in ~~this Section 3.1 if, after giving effect thereto,~~ clauses (a) through and including (u) above shall be permitted on the ~~aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater~~ Equity Interests of (i) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or~~ ETP/SXL GP, (ii) ~~15% of Consolidated Net Worth calculated as~~ ETP LLC or (iii) (y) prior to the consummation of the ~~Issue Date~~ ETP Merger, ETP and (z) upon and after the consummation of the ~~Notes~~ETP Merger, SXL.

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)

Limitation on Liens. (a) The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, directly or ~~incur~~ indirectly, create, Incur or suffer to exist any Lien (other than Permitted Liens) on any asset or property of the Company or such Restricted Subsidiary, or any income or profits therefrom, or assign or convey any right to receive income therefrom, that secures any Obligations of ~~its Subsidiaries~~the Company or such Restricted Subsidiary, ~~whether now owned~~ unless (i) in the case of any asset or ~~hereafter acquired~~property not constituting, ~~in order~~ or required to ~~secure any Indebtedness~~be pledged as, ~~without effectively providing that~~ Collateral pursuant to the terms of this Indenture, the Security Agreement and the mortgages, the Notes ~~shall be~~ or the applicable Guarantee are equally and ratably secured ~~until~~ with or prior to such Obligation with a Lien on the same assets of the Company or such Restricted Subsidiary, as the case may be, pursuant to appropriate security documentation and subject to the terms and provisions of the Intercreditor Agreement and (ii) in the case of any asset or property constituting, or required to be pledged as, Collateral pursuant to the terms of this Indenture, the Security Agreement and the mortgages, after giving pro forma effect thereto and to the Incurrence of related Indebtedness and the use of proceeds therefrom, the Secured Leverage Ratio is positive and less than 3.5 to 1 and such Lien will constitute Additional Obligations subject to the terms of the Intercreditor Agreement (it being understood Additional Notes shall only be issued in compliance with the terms of this clause (ii)). (b) Section 4.06(a)(i) shall not require the Company or any Restricted Subsidiary of the Company to secure the Notes if the relevant Lien consists of a Permitted Lien. Any Lien which is granted to secure the Notes or such Guarantee under Section 4.06(a)(i) shall be automatically released and discharged at the same time as the release of the Lien (other than a release following enforcement of remedies in respect of such ~~Indebtedness is no longer~~ Lien or the Obligations secured by such Lien~~, except: (a~~) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that ~~based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature~~ gave rise to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given obligation to secure the ~~payment of the purchase price incurred in connection with the acquisition (including acquisition through merger~~ Notes or ~~consolidation) of any property, including Capital Lease transactions in connection with any~~ such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (iGuarantee under Section 4.06(a)(i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Cogent Communications Group Inc)

Limitation on Liens. ~~The Company covenants that the Company~~ Each Borrower shall not, and shall not permit any of its ~~Subsidiaries will~~ respective Subsidiaries, and Hanover shall not ~~create or incur any Lien on any property of the Company or~~ permit any of its Subsidiaries, other than Non-Guarantor Subsidiaries, to, create, incur, assume, or permit to exist any mortgage, pledge, security interest, lien, encumbrance, defect in title or restriction upon the use of its respective real or personal properties, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) ~~Liens existing as~~ the liens, encumbrances, or security interests in favor of ~~the Issue Date of the Notes~~Lender; (b) ~~Liens granted after~~ tax, mechanics and other non-consensual statutory liens arising in the ~~Issue Date~~ ordinary course of Borrowers' or such Subsidiary's business to the extent: (i) such liens secure Indebtedness which is not overdue or (ii) until foreclosure or similar proceedings shall have been commenced, such liens secure Indebtedness relating to claims or liabilities which are (A) fully insured and being defended at the sole cost and expense and at the sole risk of the ~~Notes created~~ insurer or (B) being contested in ~~favor~~ good faith by appropriate proceedings available to each Borrower and are adequately escrowed for or reserved against loan availability by Lender (subject in the case of reserves established for sales and/or use taxes to the ~~Securityholders~~ provisions of ~~the Notes~~Section 2.6(b) hereof), or as otherwise provided for under arrangements satisfactory to Lender; (c) ~~Liens securing Indebtedness which are incurred~~ liens arising in connection with worker's compensation, unemployment insurance, surety, insurance or financial responsibility, appeal and release bonds, in each case limited to ~~extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~securities pledged as collateral for any of the foregoing; (d) ~~Liens created in substitution of~~ liens or ~~as replacements for any Lien permitted by clause (a)~~security interests constituting purchase money liens or security interests upon specific fixed assets acquired, ~~(b)~~ or ~~(c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute~~ liens or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens security interests existing on any ~~property~~ such fixed assets at the time of acquisition thereof and including capital leases; provided, that: (i) no such purchase money lien or at security interest (or capital lease, as the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that case may be) with respect to ~~clause~~ specific fixed assets shall extend to or cover any other property other than the specific fixed assets so acquired, or acquired subject to such lien or security interest (ior lease), or accessions thereto and the ~~Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any~~ proceeds thereof; (ii) such lien or security interest only secures the obligation to pay the purchase price of such specific fixed assets (or the obligations under the capital lease); (iii) the principal amount secured thereby shall not exceed one hundred percent (100%) of the cost of the fixed assets so acquired; and (iv) no Event of Default or Incipient Default shall have occurred and be continuing; (e) liens of the Private Credit Card Purchaser on the GECC Collateral; (f) liens or rights of set off against credit balances, but not liens on or rights of set off against other property of Borrowers, arising under the Third Party Credit Card Agreements; and (g) ~~pre-existing Liens~~ liens on ~~assets acquired after~~ equipment or leasehold improvements securing the ~~Issue Date of~~ Indebtedness under the ~~Notes~~capital lease obligations and incurred for leasehold establishment and improvements as permitted by Section 6.3(g) and (h) hereof; (h) ~~Liens~~ liens on the real property and fixtures of TCS Office and TCS Factory, each located in ~~favor of the Company or any of its Subsidiaries;~~LaCrosse, Wisconsin; and (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens liens on ~~any property in favor~~ customer lists of the ~~United States of America or any State thereof or any political subdivision thereof~~ Borrowers, junior in priority to ~~secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring~~Lender's liens thereon, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the ~~property financed~~ extent permitted by and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions on enforcement and other restrictions set forth in ~~this Section 3.1 if, after giving effect thereto,~~ the ~~aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15~~9.25% ~~of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Subordination Agreement.

Appears in 1 contract

Samples: Loan and Security Agreement (Hanover Direct Inc)

Limitation on Liens. The ~~Company covenants that the Company and its Subsidiaries~~ Borrower will not ~~create~~ incur, create, assume, or ~~incur~~ permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit to exist, any Lien ~~on any property of the Company or~~ upon any of its ~~Subsidiaries~~property, assets, or revenues, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien,~~ except: (a) Liens ~~existing as~~ disclosed on Schedule 9.2 hereto and Liens in favor of the ~~Issue Date~~ Agent for the benefit of the ~~Notes~~Lenders; (b) Liens ~~granted after the Issue Date of the Notes created~~ for taxes, assessments, or other governmental charges which are not delinquent or which are being diligently contested in ~~favor of the Securityholders of the Notes~~good faith and for which adequate reserves have been established; (c) Liens of mechanics, materialmen, warehousemen, carriers, landlords or other similar statutory Liens securing ~~Indebtedness which~~ obligations that are not yet due and are incurred ~~to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~in the ordinary course of business; (d) Liens ~~created in substitution~~ resulting from good faith deposits to secure payments of workmen's compensation or ~~as replacements~~ other social security programs or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, contracts (other than for ~~any Lien permitted by clause (a~~payment of Debt), ~~(b)~~ or ~~(c)~~ leases made in the ordinary course of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedbusiness; (e) Liens on ~~any assets~~the Litigation Fund Account in favor of County Bank of Rehoboth Beach, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligationsDelaware; (if) purchase money Liens ~~given to secure~~ securing Permitted Debt described in Section 9.1(i), provided that the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with Debt secured by any such ~~acquisition, and (ii) Liens existing on any property at~~ Lien encumbers only the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofasset so purchased; (g) ~~pre-existing Liens on assets acquired after the Issue Date of the Notes~~financing statements filed in connection with operating lease transactions for computers; (h) Liens in favor of a landlord of a Leased Location on only the ~~Company~~ assets of the Borrower or any Subsidiary located at such Lease Location so long as no financing statement will be filed in connection with such Lien unless (i) the collateral description listed on such financing statement is limited to the assets of ~~its Subsidiaries;~~the Borrower or applicable Subsidiary located at such Leased Location, and (ii) if requested by the Agent or the Required Lenders, the Borrower or applicable Subsidiary has obtained a Waiver for such Leased Location from such landlord (subject in all respects to a best efforts standard of performance), such Waiver to be in form and substance satisfactory to the Agent; and (i) Liens in favor of former holders of equity interests in a Target on holdback and escrow accounts established by the Borrower pursuant to purchase agreements related to Permitted Acquisitions. Neither the Borrower nor any Subsidiary shall enter into or assume any agreement (other than the Loan Documents) prohibiting the creation or assumption of any Lien upon its properties or assets whether now owned or hereafter acquired; provided that in connection with the creation of purchase money Liens permitted hereby, the Borrower or ~~purchase money security interests upon or in~~ the Subsidiary may agree that it will not permit any ~~property acquired or held by~~ other Liens (other than the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens ~~on any property~~ in favor of the ~~United States~~ Agent for the benefit of ~~America~~ the Lenders) to encumber the assets subject to such purchase money Lien. Further, the Borrower will not and will not permit any Subsidiaries directly or indirectly to create or otherwise cause or suffer to exist to become effective any consensual encumbrance or restriction of any kind on the ability of any Subsidiary to: (i) pay dividends or make any other distribution on any of such Subsidiaries' capital stock owned by the Borrower or any ~~State thereof~~ Subsidiary of the Borrower; (ii) subject to subordination provisions pay any Debt owed to the Borrower or any ~~political subdivision thereof~~ other Subsidiary; (iii) make loans or advances to ~~secure progress~~ the Borrower or any other ~~payments~~ Subsidiary; or ~~to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property;~~ (kiv) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of transfer any of its ~~Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds~~ properties or ~~other instruments under which~~ assets to the ~~Company~~ Borrower or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens Subsidiary not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesrestricted hereby.

Appears in 1 contract

Samples: Credit Agreement (Ezcorp Inc)

Limitation on Liens. The Company ~~covenants~~ shall not, and shall not permit any Material Subsidiary to, incur, create, issue, assume, guarantee or otherwise become liable for any indebtedness for money borrowed that ~~the Company and its Subsidiaries will not create or incur any~~ is secured by a Lien on any ~~property~~ Principal Property or on shares of ~~the Company~~ stock or indebtedness of any Material Subsidiary (whether such Principal Property, shares of ~~its Subsidiaries, whether~~ stock or indebtedness are now owned or hereafter acquired~~, in order~~ ) unless the Company or such Material Subsidiary makes or causes to ~~secure any Indebtedness, without effectively providing that~~ be made effective provisions whereby the ~~Notes shall~~ Securities issued under this Indenture will be secured by such Lien equally and ratably with (or prior to) all other indebtedness thereby secured ~~until~~ so long as any such ~~time as such Indebtedness is no longer secured by such Lien, except~~indebtedness shall be secured. The foregoing restriction does not apply to the following: (ai) Liens for taxes, assessments or governmental charges or levies on its property if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being 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; (ii) Liens imposed by law, such as carriers’, warehousemen’s, materialmen’s, workmen’s, repairmen’s and mechanics’ liens, and other similar Liens (including deposits on pledges to obtain the release of such Liens) arising in the ordinary course of business which secure payment of obligations not more than 60 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on its books; (iii) Liens arising out of pledges or deposits required or permitted to qualify the Company or any Subsidiary to conduct business, to maintain self-insurance or to obtain the benefit of any law pertaining to worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation; (iv) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character and which do not in any material way affect the marketability of the same or interfere with the use thereof in the business of the Company or its Subsidiaries; (v) Liens incurred in the ordinary course of business securing the performance of bids, trade contracts, leases, statutory obligations, bonds, letters of credit and other similar obligations, and judgment liens to the extent enforcement thereof is effectively stayed, provided that full provision for the payment of all such obligations shall have been made on the books of the Company or such Subsidiary as may be required by GAAP; (vi) banker’s liens and rights of setoff arising by operation of law and contractual rights of setoff; (vii) Liens existing as of the ~~Issue Date~~ date of ~~the Notes~~this Indenture; (bviii) Liens ~~granted after the Issue Date~~ created by Subsidiaries of the ~~Notes created in favor~~ Company to secure indebtedness of such Subsidiaries to the Company or to one or more other Subsidiaries of the ~~Securityholders of the Notes~~Company; (cix) Liens ~~securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution~~ affecting property of ~~or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on~~ a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens Person existing ~~on any property~~ at the time it becomes a Subsidiary of ~~acquisition thereof~~ the Company or at the time it merges into or consolidates with the Company or a Subsidiary of the Company or at the time of ~~acquisition by~~ a sale, lease or other disposition of all or substantially all of the properties of such Person to the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (ix) ~~purchase money~~ Liens ~~or purchase money security interests upon or in~~ on any property ~~acquired~~ existing at the time of the acquisition thereof or ~~held by the Company or any of its Subsidiaries in the ordinary course of business~~ incurred to secure payment of all or a part of the purchase price ~~of such property~~ thereof or to secure ~~Indebtedness~~ indebtedness incurred ~~solely~~ prior to, at the time of, or within 12 months after the acquisition thereof for the purpose of financing all or part of the ~~acquisition of such property~~purchase price thereof; (jxi) Liens on any property to secure all or part of the cost of improvements or construction thereon or indebtedness incurred to provide funds for such purpose in a principal amount not exceeding the cost of such improvements or construction; (xii) Liens on shares of stock, indebtedness or other securities of a Person that is not the Company or a Subsidiary of the Company; (xiii) Liens on or with respect to capital leases entered into after the date of this Indenture, provided that such liens extend only to the property or assets that are the subject of such capital leases; (xiv) Liens on property of the Company or a Subsidiary in favor of the United States of America or any State ~~thereof~~ thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision ~~thereof~~ thereof, to secure ~~progress~~ partial, progress, advance or other payments pursuant to any contract or statute or to secure ~~Indebtedness~~ any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of ~~acquiring, constructing or improving~~ construction of the property subject to such ~~property~~Liens; (kxv) any security interest created in connection with the ~~pledge~~ sale, discount or ~~assignment in the ordinary course~~ guarantee of ~~business of electricity~~notes, ~~gas (either natural or artificial) or steam~~chattel mortgages, leases, accounts ~~receivable~~ receivable, trade acceptances or ~~customers’ installment paper; (l) Liens securing xxxxxx~~other paper or contingent repurchase obligations, ~~swaps, derivatives and other similar transactions entered into~~ arising out of sales of merchandise in the ordinary course of business; (mxvi) ~~Liens incurred in connection with an acquisition~~ any extension, substitution, renewal or replacement of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than any lien referred to ~~secure the payment of money, none of which,~~ in the ~~opinion of counsel~~foregoing clauses (i) through (xiv) inclusive, ~~are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business~~ or ~~the business~~ of any indebtedness secured thereby; provided, however, that the principal amount of ~~its Subsidiaries; (t) any defects~~ indebtedness secured thereby shall not exceed the principal amount of ~~title and any terms~~indebtedness so secured at the time of such extension, ~~conditions~~substitution, ~~agreements~~renewal or replacement, ~~covenants~~or at the time the lien was issued, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed ~~by the Company~~ or ~~any of its Subsidiaries in connection with the issuance of tax-exempt state~~ otherwise permitted, and ~~local bonds for purposes of financing~~that such extension, ~~in whole~~ substitution, renewal or ~~in part, the acquisition or construction of property to~~ replacement lien shall be ~~used by the Company or any of its Subsidiaries, provided the Liens are~~ limited to all or part of substantially the same property ~~financed and~~ which secured the ~~related real estate;~~ lien extended, renewed or replaced (~~w) Liens incurred in the creation or existence of leases made, or existing~~ plus improvements on ~~property acquired, in the ordinary course of business~~such property); and (xxvii) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements),~~ other Liens arising in ~~whole or in part,~~ connection with indebtedness of ~~any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1,~~ the Company and ~~any of~~ its Subsidiaries ~~may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth~~ in ~~this Section 3.1 if, after giving effect thereto, the~~ an aggregate principal amount ~~of Indebtedness incurred after~~ for the ~~Issue Date~~ Company and its Subsidiaries, together with all Attributable Debt with respect to sale and leaseback transactions involving Principal Properties (with the exception of the ~~Notes and secured by Liens~~ transactions that are excluded as described in Section 10.07), not ~~permitted under this Section 3.1 does not exceed~~ exceeding at the ~~greater of (i) 15~~time such lien is issued, created or assumed 10% of the Consolidated ~~Net Worth calculated as~~ Assets of the ~~date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Company.

Appears in 1 contract

Samples: Indenture (Gulfstream Aerospace Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not permit any of its Restricted Subsidiaries ~~will not create~~ to, create, incur, assume or ~~incur~~ suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom for purposes of security unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect as of the ~~Notes;~~ Issue Date; (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c~~B) Liens securing ~~Indebtedness which are incurred to extend, renew~~ Senior Debt and Liens on assets of Restricted Subsidiaries securing guarantees of Senior Debt; (C) Liens securing the Notes; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ Liens (1) are not materially less favorable to the ~~property encumbered by~~ Holders and are not materially more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (h2) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Del Monte Foods Co)

Limitation on Liens. ~~The Company covenants that~~ Holdings and the ~~Company~~ Issuers will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of their Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of Holdings, the ~~Company~~ Issuers or any of ~~its~~ their Restricted Subsidiaries, whether ~~now~~ owned on the Issue Date or ~~hereafter acquired~~acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after~~ securing borrowings under the ~~Issue Date~~ Credit Agreement incurred pursuant to clause (2) of the ~~Notes created in favor~~ definition of ~~the Securityholders of the Notes~~"Permitted Indebtedness"; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution~~ of ~~or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company~~Holdings, the ~~property encumbered under~~ Issuers or a Wholly Owned Restricted Subsidiary of Holdings or the Issuers on assets of any ~~such substitute~~ Restricted Subsidiary of Holdings or ~~replacement Lien is substantially similar in nature to~~ the ~~property encumbered by the otherwise permitted Lien which is being replaced~~Issuers; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the ~~refurbishment~~provisions of this Indenture; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any property at or assets of Holdings, the ~~time of acquisition thereof or at the time of acquisition by the Company~~ Issuers or any of ~~its~~ their Restricted Subsidiaries ~~of any Person then owning such property whether or~~ not ~~such existing Liens were given to secure~~ securing the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Superior Essex Inc)

Limitation on Liens. ~~The Company covenants that the Company~~ TLGI will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Restricted Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom, where the aggregate amount of Indebtedness secured by any such Liens, together with the aggregate amount of property subject to any Sale-Leaseback Transactions of TLGI and its Restricted Subsidiaries (other than Permitted Sale-Leaseback Transactions), exceeds 10% of TLGI's Consolidated Net Worth, unless (x) in ~~order~~ the case of Liens securing Indebtedness that is subordinate or junior in right of payment to ~~secure any Indebtedness~~the Senior Notes, ~~without effectively providing~~ the Senior Notes are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (y) in all other cases, the Senior Notes ~~shall be~~ are equally and ~~ratably~~ rateably secured ~~until such time as such Indebtedness is no longer secured by such Lien, except:~~ except for (a) Liens existing as of at the ~~Issue Date of the Notes;~~ Measurement Date; (b) Liens ~~granted after~~ securing the ~~Issue Date of~~ Senior Notes or the ~~Notes created in favor of the Securityholders of the Notes;~~ Guarantee; (c) Liens in favour of TLGI, the Guarantor or any Wholly-Owned Subsidiary; (d) Liens securing Indebtedness which ~~are~~ is incurred to ~~extend, renew or~~ refinance Indebtedness which is has been secured by ~~Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any~~ a Lien permitted ~~by clause (a), (b) or (c)~~ under the provisions of this ~~Section 3.1; provided that based on a good faith determination~~ Indenture and which has been incurred in accordance with the provisions of the ~~Company~~Indenture; provided, ~~the property encumbered under any~~ however, that such ~~substitute~~ Liens do not extend to or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on cover any property ~~at the time~~ or assets of ~~acquisition thereof or at the time of acquisition by the Company~~ TLGI or any of its Restricted Subsidiaries ~~of any Person then owning such property whether or~~ not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes~~Indebtedness so refinanced, ~~create or incur Liens which would otherwise be subject to~~ and provided further that the ~~restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate~~ principal amount of the Indebtedness so incurred ~~after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1~~ does not exceed the ~~greater~~ principal amount of ~~(i) 15% of Consolidated Net Worth calculated~~ the Indebtedness so refinanced as of the date of ~~the creation or incurrence of~~ such ~~Lien or~~ refinancing; and (iie) ~~15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Loewen Group Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets or any proceeds therefrom of the ~~Company~~ Borrower or any of its ~~Subsidiaries,~~ Restricted Subsidiaries whether ~~now~~ owned on the Closing Date or ~~hereafter acquired~~acquired after the Closing Date, in ~~order~~ each case to secure ~~any Indebtedness~~Debt, ~~without effectively providing~~ unless: (i) in the case of Liens securing Debt that is expressly subordinate or junior in right of payment to the ~~Notes shall be~~ Senior Unsecured Obligations, the Senior Unsecured Obligations are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (ii) in all other cases, the Senior Unsecured Obligations are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~except for (aA) Liens existing as of the ~~Issue~~ Closing Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Closing Date; (bB) Liens ~~granted after~~ securing Debt and other obligations outstanding under the ~~Issue Date of~~ Credit Facilities to the ~~Notes created in favor of the Securityholders of the Notes~~extent permitted under Section 5.01(h); (cC) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Senior Unsecured Obligations; (dD) Liens ~~created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ of the ~~Company,~~ Borrower or a Restricted Subsidiary of the ~~property encumbered under~~ Borrower on assets of any ~~such substitute or replacement Lien is substantially similar in nature to~~ Restricted Subsidiary of the ~~property encumbered by the otherwise permitted Lien which is being replaced~~Borrower; (eE) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Debt which is incurred to ~~finance~~ Refinance any Debt that was secured by a Lien permitted under this Agreement and that has been incurred in accordance with the ~~refurbishment~~provisions of this Agreement; provided, ~~improvement~~ however, that such Liens do not extend to or ~~construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement~~ cover any property or ~~construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment~~ assets of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company Borrower or any of its Restricted Subsidiaries ~~of any Person then owning such property whether or~~ not ~~such existing Liens were given to secure~~ securing the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessDebt so Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Senior Unsecured Term Loan Agreement (Dresser Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except in the case of either clause (ai) or (ii) for (A) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Senior Indebtedness ~~which are incurred to extend, renew~~ and Liens securing Guarantor Senior Indebtedness; (C) Liens securing the Securities and the Guarantees; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ Liens (I) are no less favorable to the ~~property encumbered by~~ Holders and are not more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (hII) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Scot Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume, permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Closing Date or acquired after the Closing Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (aA) Liens existing as of the ~~Issue~~ Closing Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Closing Date; (bB) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Senior Indebtedness and Liens securing Guarantor Senior Indebtedness; (cC) Liens securing ~~Indebtedness which are incurred to extend, renew~~ the Notes and the Guarantees; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Agreement and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Agreement; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e)~~ Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) are not materially more restrictive to the Company and not more favorable to the lienholders with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being refinanced and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xF) ~~any extension, renewal, substitution or replacement~~ Permitted Liens; it being understood that Liens set forth in subclauses (~~or successive extensions, renewals or replacements), in whole or in part,~~ A) through (F) of ~~any Lien referred to in~~ this clause (ii) shall be permitted under this Section ~~3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company~~ 8.7 and ~~any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise~~ shall not be subject to the ~~restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount~~ requirements of ~~Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ clause (i) ~~15%~~ or the first eleven words of ~~Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or~~ this clause (ii~~) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~).

Appears in 1 contract

Samples: Purchase Agreement (Ruths Chris Steak House, Inc.)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure~~ the Securities or any ~~Indebtedness~~Guarantee, ~~without effectively providing~~ the Securities and the Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the ~~Notes shall be~~ Securities and the Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Senior Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by~~ and Liens ~~permitted to be incurred under this Section 3.1;~~ securing Guarantor Senior Indebtedness; (dC) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company, ; (D) Liens securing Refinancing Indebtedness incurred in accordance with the ~~property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien~~ provisions of this Indenture which is ~~being replaced; (e) Liens on any assets, created solely to secure obligations~~ incurred to ~~finance the refurbishment~~Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens (i) are no less favorable to the -------- ------- Holders and are no more favorable to the lienholders with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries;~~ Restricted Subsidiaries not securing the Indebtedness so Refinanced; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (lE) Liens securing ~~xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens~~ Indebtedness incurred in ~~connection~~ accordance with ~~an acquisition of assets or a project financed on a non-recourse basis;~~ clause (nxv) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the ~~Company’s property or property~~ definition of ~~a Subsidiary for the purpose of roads, pipelines, utility transmission~~ "Permitted Indebtedness" and ~~distribution lines or other rights-of-way and similar purposes;~~ (sF) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (RSC Duval Inc)

Limitation on Liens. ~~The Company covenants that the Company~~ TCEH shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit TCEH Finance or ~~incur~~ any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the ~~Company~~ Issuer or any Subsidiary Guarantor, or any income or profits therefrom, or assign or convey any right to receive income therefrom, unless (1) in the case of ~~its Subsidiaries~~Liens securing any Indebtedness that does not constitute First Lien Obligations, ~~whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ and related Subsidiary Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens or (2) in all other cases, the Notes or the related Subsidiary Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except that the foregoing shall not apply to (a) Liens ~~existing as of~~ securing the ~~Issue Date of~~ TCEH Second Lien Notes and the ~~Notes;~~ related subsidiary guarantees, (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens~~ securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens~~ permitted to be incurred under ~~this Section 3.1; (d) Liens created in substitution of or as replacements for any~~ Credit Facilities, including the TCEH Second Lien ~~permitted by~~ Notes and the related subsidiary guarantees, to the extent not included under the preceding clause (a), and the Notes and the related Subsidiary Guarantees, and including any letter of credit relating thereto, that was permitted by the terms of this Indenture to be incurred pursuant to Section 4.09(b)(1) hereof and (c) Liens incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to Section 4.09 hereof; provided that, with respect to Liens securing Obligations permitted under this clause (c), at the time of incurrence and after giving pro forma effect thereto, the Consolidated Secured Debt Ratio for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio would be no greater than 5.0 to 1.0; and provided further that with respect to Liens permitted under the preceding clause (b) or (c) that secure Obligations on a basis junior to the First Lien Obligations and senior to the Junior Lien Obligations, the holders of ~~this~~ such Obligations (or a representative thereof on behalf of such holders) shall have entered into a customary intercreditor agreement providing that the Liens securing such Obligations rank junior to the First Lien Obligations. Notwithstanding the foregoing, TCEH shall not, and shall not permit TCEH Finance or any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien on the Collateral (other than Permitted Liens, excluding any Permitted Lien (A) described in either clause (6) or clause (18) of the definition of Permitted Liens to the extent such Lien described in clause (6) or clause (18) secures Indebtedness incurred under Section ~~3.1~~4.09(b)(12) hereof or (B) described in clause (10) of the definition of Permitted Liens to the extent such Lien secures Indebtedness of TCEH, TCEH Finance or any Subsidiary Guarantor owed to a Restricted Subsidiary that is not a Guarantor), or any income or profits therefrom or assign or convey any right to receive income therefrom except: (1) Liens on the Collateral securing up to $24,650.0 million in aggregate principal amount of First Lien Obligations (including the Notes, any Additional Notes, the TCEH Senior Secured Facilities, any guarantees of the foregoing and any other Indebtedness incurred pursuant to Section 4.09 hereof; provided that ~~based on a good faith determination~~ such amount shall be (x) reduced by an amount equal to the amount, without duplication, of (A) First Lien Obligations repaid with proceeds of Asset Sales of Collateral in accordance with Section 4.10 hereof, (B) any mandatory prepayments made under the TCEH Senior Secured Facilities after the Issue Date resulting from the application of “excess cash flow” proceeds pursuant to the terms of the ~~Company, the property encumbered under~~ TCEH Senior Secured Facilities and (C) any ~~such substitute or replacement Lien is substantially similar in nature~~ mandatory “amortization” repayments actually made pursuant to the ~~property encumbered by~~ terms of the ~~otherwise permitted~~ TCEH Senior Secured Facilities after the Issue Date unless such “amortization” repayment is funded from First Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or constructionObligations, and ~~all renewals~~(y) increased, ~~extensions~~to the extent any First Lien Obligations permitted to be secured by this clause (1) are refinanced with First Lien Obligations, ~~refinancings~~by an amount equal to the aggregate amount of fees, ~~replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price~~ underwriting discounts and other costs and expenses incurred in connection with ~~the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any~~ such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessrefinancing; and (2) Liens on the Collateral securing Junior Lien Obligations or other Obligations secured on a basis senior to the Junior Lien Obligations that are not First Lien Obligations (including the TCEH Second Lien Notes, any guarantees of the foregoing and/or other Indebtedness incurred pursuant to Section 4.09 hereof; provided that (x) ~~any extension~~with respect to Liens permitted under the preceding clause (1) that secure First Lien Obligations, ~~renewal, substitution or replacement~~ the holders of such First Lien Obligations (or ~~successive extensions, renewals or replacements), in whole or in part,~~ a representative thereof on behalf of ~~any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company~~ such holders) shall have executed and ~~any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions~~ delivered joinder agreements (as set forth in ~~this Section 3.1 if~~the First Lien Intercreditor Agreement and the Second Lien Intercreditor Agreement), ~~after giving effect thereto~~(y) with respect to Liens permitted under the preceding clause (2) that secure Obligations on a basis junior to the First Lien Obligations and senior to the Junior Lien Obligations, the ~~aggregate principal amount~~ holders of ~~Indebtedness incurred after~~ such Obligations (or a representative thereof on behalf of such holders) shall have entered into a customary intercreditor agreement providing that the ~~Issue Date~~ Liens securing such Obligations rank junior to the First Lien Obligations and (z) with respect to Liens permitted under the preceding clause (2) that secure Junior Lien Obligations, the holders of such Junior Lien Obligations (or a representative thereof on behalf of such holders) shall have executed and delivered a joinder agreement (as set forth in the Second Lien Intercreditor Agreement). Any Lien which is granted to secure the Notes ~~and secured by Liens not permitted~~ under this Section ~~3.1 does not exceed~~ 4.12 shall be discharged at the ~~greater of (i) 15% of Consolidated Net Worth calculated~~ same time as the discharge of the ~~date~~ Lien (other than through the exercise of remedies with respect thereto) that gave rise to the ~~creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of~~ obligation to so secure the Notes.

Appears in 1 contract

Samples: Indenture (Energy Future Intermediate Holding CO LLC)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, incur, issue, assume or ~~incur~~ guarantee any ~~Lien on~~ indebtedness for money borrowed or any ~~property~~ other indebtedness evidenced by notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (hereinafter in this Section and in Section 10.6 called "Debt") secured by pledge of, or mortgage, deed of trust or other lien on, any Principal Property owned by the Company or any Restricted Subsidiary, or any shares of ~~its Subsidiaries~~stock or Debt of any Restricted Subsidiary (such pledges, ~~whether now owned or hereafter acquired~~mortgages, deeds of trust and other liens being hereinafter in ~~order to secure any Indebtedness~~this Section and in Section 10.6 called "Mortgages"), without effectively providing that the Notes (together with, if the Company shall so determine, any other Debt of the Company or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Notes) shall be secured equally and ratably with (or prior to) such secured ~~until such time~~ Debt, so long as such ~~Indebtedness is no longer~~ secured ~~by such Lien~~Debt shall be so secured; provided, ~~except~~however, that these restrictions shall not apply to, and there shall be excluded from secured Debt in any computation under this Section, Debt secured by: (a) ~~Liens~~ Mortgages on property of, or on any shares of stock or Debt of, any corporation existing ~~as of~~ at the ~~Issue Date of the Notes~~time such corporation becomes a Restricted Subsidiary; (b) ~~Liens granted after~~ Mortgages to secure indebtedness of any Restricted Subsidiary to the ~~Issue Date of the Notes created in favor of the Securityholders of the Notes~~Company or to another Restricted Subsidiary; (c) ~~Liens securing Indebtedness which are incurred to extend~~Mortgages for taxes, ~~renew~~ assessments or ~~refinance Indebtedness~~ governmental charges or levies in each case (i) not then due and delinquent or (ii) the validity of which is ~~secured~~ being contested in good faith by ~~Liens permitted~~ appropriate proceedings, and materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's or other like Mortgages, or deposits to ~~be incurred under this Section 3.1~~obtain the release of such Mortgages; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property Mortgages in favor of the United States of America or any State ~~thereof~~ thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision ~~thereof~~ thereof, to secure ~~progress~~ partial, progress, advance or other payments pursuant to any contract or statute (including Debt of the pollution control or industrial revenue bond type) or to secure ~~Indebtedness~~ any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of ~~acquiring, constructing~~ construction of or ~~improving~~ improvements to the property subject to such ~~property~~Mortgages (including without limitation under the Oregon Small Scale Energy Loan Program); (ke) Mortgages on property (including any lease which should be capitalized on the ~~pledge~~ lessee's balance sheet in accordance with generally accepted accounting principles), shares of stock or ~~assignment in~~ Debt existing at the ~~ordinary course~~ time of ~~business~~ acquisition thereof (including acquisition through merger or consolidation or through purchase or transfer of ~~electricity, gas (either natural~~ the properties of a corporation as an entirety or ~~artificial~~substantially as an entirety) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of ~~money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business~~ all or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the ~~electricity~~purchase price or construction cost or improvement cost thereof or to secure any Debt incurred at the time of, ~~gas~~ or within 120 days after, the acquisition of such property or shares or Debt or the completion of any such construction or improvements thereon (~~either natural~~ including any improvements on an existing property) or ~~artificial)~~the commencement of commercial operation of such property, ~~steam~~ whichever is later, for the purpose of financing all or any ~~by-products generated or produced by or from any~~ part of the ~~Company’s~~ purchase price or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam businessconstruction cost thereof; (vf) ~~Liens created or assumed by the Company or any~~ Mortgages existing as of ~~its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing~~June 2, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business1993; and (xg) ~~any~~ Any extension, ~~renewal, substitution~~ renewal or replacement (or successive extensions, renewals or replacements), in as a whole or in part, of any ~~Lien~~ Mortgage referred to in ~~this Section 3.1. Notwithstanding anything~~ the foregoing clauses (a) to ~~the contrary in this Section 3.1~~(f), ~~the Company and any of its Subsidiaries may~~inclusive; provided, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of that (i) ~~15% of Consolidated Net Worth calculated as~~ such extension, renewal or replacement Mortgage shall be limited to all or a part of the ~~date~~ same property, shares of stock or Debt that secured the ~~creation~~ Mortgage extended, renewed or ~~incurrence of~~ replaced (plus improvements on such ~~Lien or~~ property) and (ii) ~~15% of Consolidated Net Worth calculated as of~~ the ~~Issue Date of the Notes~~Debt secured by such Mortgage at such time is not increased.

Appears in 1 contract

Samples: Indenture (Pope & Talbot Inc /De/)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (A) such Lien is not on Collateral; and (B) (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ or the Guarantee of such Guarantor, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens for so long as such Subordinated Indebtedness is secured; and (2) in all other cases, the Notes or the Guarantee of such Guarantor, as the case may be, are equally and ratably secured ~~until such time~~ for so long as such Indebtedness is ~~no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after~~ securing (i) Indebtedness incurred under the ~~Issue Date~~ Credit Facility or (ii) Indebtedness of a Foreign Subsidiary; provided that in each of (i) and (ii) such Liens shall not be on or relate to any fixed assets of the ~~Notes created in favor of the Securityholders of the Notes~~Company or its Restricted Subsidiaries; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and any Guarantees; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or a Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of ~~its Subsidiaries~~the Company; (e) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens: (i) ~~purchase money Liens or purchase money security interests upon or~~ are no less favorable to the Holders in any material respect and are not more favorable to the lienholders in any material respect with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (ii) do not extend to or cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xf) ~~any extension~~Permitted Liens; provided, ~~renewal~~however, ~~substitution or replacement (or successive extensions~~that, ~~renewals or replacements), in whole or in part, of any Lien referred~~ with respect to ~~in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1~~Collateral, the ~~Company~~ exceptions set forth above (i) shall not include Liens described in clauses (b) and ~~any of its Subsidiaries may, without equally~~ (d) above and ~~ratably securing the Notes, create or incur Liens which would otherwise~~ (ii) shall be subject to the ~~restrictions set forth in this~~ provisions of Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes13.1 hereof.

Appears in 1 contract

Samples: Indenture (Omnova Solutions Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not permit any of its Restricted Subsidiaries ~~will not create~~ to, create, incur, assume or ~~incur~~ suffer to exist any ~~Lien on~~ Liens of any kind against or upon any of its property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, unless, except in ~~order~~ the case of Liens securing Indebtedness that is subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes which shall not be permitted, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect as of the ~~Notes;~~ Issue Date; (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c~~B) Liens securing ~~Indebtedness which are incurred to extend, renew~~ Senior Debt and Liens on assets of Restricted Subsidiaries securing guarantees of Senior Debt; (C) Liens securing the Notes; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ Liens (A) are no less favorable to the ~~property encumbered by~~ Holders and are no more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (hB) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Securities Purchase Agreement (Wilson Greatbatch Technologies Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any of its Restricted Subsidiaries that are Guarantors of the Yankee Notes or, if applicable, the Notes, to, directly or ~~incur~~ indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness ranking pari passu with or subordinated to the Notes or, if applicable, any related Guarantee on any asset or property of the Company or any Restricted Subsidiary that is a Guarantor of ~~its Subsidiaries~~the Yankee Notes or, ~~whether now owned~~ if applicable, the Notes, or ~~hereafter acquired~~any income or profits therefrom, or assign or convey any right to receive income therefrom, unless: (1) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ and, if applicable, any related Guarantees are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; or (2) in all other cases, the Notes and related Guarantees, if applicable, are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except that the foregoing shall not apply to: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens ~~given~~ existing on the Issue Date to ~~secure~~ the ~~payment of~~ extent and in the ~~purchase price incurred~~ manner such Liens are in ~~connection with~~ effect on the ~~acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and~~ Issue Date; (ii) (A) Liens ~~existing on~~ securing the Notes and, if applicable, any ~~property at~~ related Guarantees and any Notes issued in exchange therefor pursuant to the ~~time~~ Registration Rights Agreement (including Notes issued in exchange for Additional Notes) and secured by a Lien (in each case in accordance with the terms of ~~acquisition thereof or at the time of acquisition by the Company or~~ this Indenture) and any ~~of its Subsidiaries of any Person then owning such property whether or not such existing~~ related Guarantees, (B) Liens ~~were given~~ securing Indebtedness permitted to ~~secure the payment~~ be incurred pursuant to clauses (1) and (11) of the ~~purchase price~~ definition of ~~the property~~ “Permitted Debt” and (C) Liens securing Indebtedness permitted to ~~which they attach~~be incurred pursuant to Section 4.9; provided that with respect to clause (iC), at the ~~Liens shall be given within 12 months after~~ time of incurrence such ~~acquisition and shall attach solely to~~ secured Indebtedness, such Indebtedness does not exceed the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate maximum principal amount of Indebtedness ~~incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated~~ that, as of such date, and after giving effect to the ~~date of the creation or~~ incurrence of such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as~~ Indebtedness and the application of the ~~Issue Date~~ proceeds therefrom on such date, would not cause the Secured Indebtedness Leverage Ratio of the ~~Notes~~Company to exceed 4.0 to 1.0; or (iii) Permitted Liens. Any Lien created for the benefit of the Holders of Notes pursuant to this Section 4.12 shall be deemed automatically and unconditionally released and discharged upon the release and discharge of each of the Liens described in clauses (1) and (2) above.

Appears in 1 contract

Samples: Indenture (Yankee Holding Corp.)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Closing Date or acquired after the Closing Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to the Notes, the Notes are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens, in ~~order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured~~ each case until such time as such ~~Indebtedness is~~ Liens no longer ~~secured by~~ secure other Indebtedness or obligations; and (2) in all other cases, the Notes are equally and ratably secured, in each case until such ~~Lien~~time as such Liens no longer secure other Indebtedness or obligations, ~~except~~except for: (a) Liens existing as of the ~~Issue~~ Closing Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Closing Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Senior Debt and Liens securing Guarantor Senior Debt; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~the Notes and the Guarantees; (d) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Guarantor on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance~~ Refinance any Indebtedness which has been secured by a Lien permitted under this Agreement and which has been incurred in accordance with the ~~refurbishment~~provisions of this Agreement; provided, ~~improvement or construction of~~ however, that such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are not materially less favorable to the Holders and are not materially more favorable to the lienholders with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Senior Subordinated Credit Agreement (Ameristar Casinos Inc)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any other Restricted Person to, create, assume or ~~incur~~ permit to exist any Lien ~~on any property of the Company~~ upon or with respect to any of its ~~Subsidiaries, whether~~ properties or assets now owned or hereafter acquired, ~~in order~~ except the following Liens (to ~~secure any Indebtedness~~the extent permitted by this Section, ~~without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~herein called “Permitted Liens”): (a) Liens existing as on the date of this Agreement and listed in the ~~Issue Date of the Notes~~Disclosure Schedule; (b) Liens ~~granted after~~ imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due or the ~~Issue Date~~ validity of which is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the ~~Notes created~~ books of any Restricted Person in ~~favor of~~ accordance with GAAP or (ii) which could not, individually or in the ~~Securityholders of the Notes~~aggregate be reasonably expected to have a Material Adverse Effect; (c) ~~Liens securing Indebtedness which are incurred to extend~~pledges or deposits of cash or securities under worker’s compensation, ~~renew~~ unemployment insurance or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~other social security legislation; (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) including Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) property of any ~~property~~Restricted Person in the possession of storage facilities, ~~including Capital Lease transactions in connection with any such acquisition, and (ii~~pipelines or barges) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries arising in the ordinary course of business for amounts (i) which are not more than sixty (60) days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect; (e) deposits of cash or securities to secure the ~~purchase price~~ performance of ~~such property or to secure Indebtedness incurred solely~~ bids, trade contracts (other than for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiringborrowed money), ~~constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity~~leases, ~~gas (either natural or artificial) or steam~~statutory obligations, ~~accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx~~surety and appeal bonds, ~~swaps, derivatives~~ performance bonds and other ~~similar transactions entered into~~ obligations of a like nature incurred in the ordinary course of business; (mf) Liens ~~incurred~~ on deposits of cash or securities in ~~connection with~~ favor of the seller of any property intended to be acquired in an ~~acquisition of assets or a project financed on a non-recourse basis~~Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment; (ng) Liens ~~for taxes~~arising pursuant to customary provisions in joint venture agreements or arrangements, ~~assessments~~ limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or ~~governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent~~other similar agreement; (oh) ~~Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’~~easements, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-~~way~~ way, restrictions and other similar ~~purposes; (s)~~ encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning ~~ordinances, regulations, reservations,~~ restrictions, ~~covenants~~easements, ~~party wall agreements~~licenses, ~~conditions~~ restrictions on the use of ~~record and other encumbrances, other than to secure the payment of money, none of~~ real property or minor imperfections in title thereto which, in the ~~opinion of counsel~~aggregate, are ~~such as to~~ not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ~~proper operation and development~~ ordinary conduct of ~~the affected property for its intended use in the Company’s business or~~ the business of any ~~of its Subsidiaries~~Restricted Person; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (ui) rights reserved to or vested in ~~others~~ any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to ~~take~~ revoke or ~~receive~~ terminate any ~~part of the electricity~~such right, ~~gas~~ power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process; (~~either natural~~ j) rights reserved to or ~~artificial), steam~~ vested by Law in any Governmental Authority to control or regulate in any ~~by-products generated or produced by or from~~ manner any of the ~~Company’s~~ properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws; (k) rights reserved to the grantors of ~~its Subsidiaries’~~ any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith; (l) inchoate Liens in respect of pending litigation or with respect to ~~any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are~~ a judgment that has not resulted in ~~use in the ordinary course~~ an Event of ~~the electricity, gas (either natural or artificial) or steam business~~Default under Section 8.01; (vm) statutory Liens in respect of payables; (n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or ~~assumed by the Company or any of its Subsidiaries~~ in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the~~ such acquisition or ~~construction~~ such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property of ~~property to be used by~~ the ~~Company~~ Borrower or any Subsidiary, and (iii) such Lien shall secure only those obligations which it secures on the date of ~~its Subsidiaries~~such acquisition or the date such Person becomes a Subsidiary, ~~provided~~ as the ~~Liens are limited to the property financed and the related real estate~~case may be; (wo) Liens ~~incurred in the creation or existence of leases made~~securing Indebtedness permitted by Sections 7.01(f), or ~~existing~~ 7.01(h); (p) Liens on cash margin collateral securing Hedging Contracts permitted under Section 7.10; (q) Liens in respect of operating leases covering only the property ~~acquired~~subject thereto; (r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in ETP and Regency) and joint ventures securing Indebtedness or other obligations of such Unrestricted Person or joint venture; (s) Liens securing (i) Revolving Obligations in an original principal amount not to exceed $1,000,000,000, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the obligations under this Agreement, the Senior Note Obligations or Senior Note Refinancing Indebtedness, (iii) the Obligations and/or any Term Loan Refinancing Indebtedness and (iv) obligations for other Indebtedness incurred pursuant to Section 7.01(l); (t) Liens, (i) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Restricted Person in the ordinary course of business, and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to the terms of this Agreement; and (xu) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any ~~extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1~~time outstanding. Notwithstanding ~~anything~~ any of the foregoing to the ~~contrary in this Section 3.1~~contrary, other than as permitted by clause (s) above, no Liens of the ~~Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions~~ kind set forth in ~~this Section 3.1 if~~clauses (a) through and including (u) above shall be permitted on the Equity Interests of ETP, ~~after giving effect thereto~~ETP GP, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation ETP LLC, Regency, Regency GP or ~~incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Regency LLC.

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of ~~its~~ the Restricted Subsidiaries, whether now owned or hereafter acquired, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities or a Subsidiary Guarantee, ~~without effectively providing~~ the Securities or such Subsidiary Guarantee is secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (aA) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (bB) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Senior Debt and Liens securing Guarantor Senior Debt; (cC) Liens securing ~~Indebtedness which are incurred to extend, renew~~ the Securities or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~any Subsidiary Guarantee; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or any ~~of its Subsidiaries~~Guarantor; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens: (I) are no less favorable to Holders of the Securities and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (II) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Tenneco Automotive Inc)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create or incur any Lien on any property of the Company or~~ No Loan Party nor any of its ~~Subsidiaries~~respective Subsidiaries will create, ~~whether~~ assume or permit to exist any Lien upon any of the properties or assets that it now ~~owned~~ owns or hereafter ~~acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien~~acquires, except:, to the extent not otherwise forbidden by the Security Documents, the following (“Permitted Liens”): (a) Liens ~~existing as of the Issue Date of the Notes;~~which secure Secured Obligations only. (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) statutory Liens ~~given to secure the payment of the purchase price~~ for taxes, statutory mechanics’ and materialmen’s Liens incurred in ~~connection~~ the ordinary course of business, and other similar statutory Liens incurred in the ordinary course of business, provided such Liens do not secure Indebtedness and secure only Liabilities which are not delinquent or which are being contested as provided in Section 6.7 and for which adequate reserves have been set aside in accordance with ~~the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition,~~ GAAP and (ii) any Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given granted to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries landlords in the ordinary course of business on property located in or on the premises which such landlord is leasing or subleasing to ~~secure~~ such Loan Party or Subsidiary to the ~~purchase price of~~ extent such ~~property~~ lease or ~~to secure Indebtedness incurred solely for~~ sublease is not prohibited by this Agreement or the ~~purpose of financing the acquisition of such property;~~other Security Documents. (jc) Liens on fixed or capital assets (including office equipment, data processing equipment and motor vehicles) acquired, constructed or improved by any ~~property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to~~ Loan Party; provided that (i) such Liens secure Indebtedness permitted by clause (e) of Section 7.1, (ii) such Liens and the Indebtedness secured thereby are incurred ~~for~~ within 90 days after such acquisition or the ~~purpose~~ completion of ~~financing~~ such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such ~~property;~~fixed or capital assets and (iv) such Liens shall not apply to any other Property of the Loan Parties. (kd) ~~the pledge~~ Liens on Cash or ~~assignment~~ Cash Equivalents pledged to secure payment of worker’s compensation insurance (or to participate in any fund in connection with worker’s compensation insurance), unemployment insurance, pensions or social security programs or similar legislation, in each case, in the ordinary course of business ~~of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper;~~and to the extent such obligations are permitted hereunder. (le) Liens ~~securing xxxxxx~~on Cash or Cash Equivalents to secure the performance of bids, ~~swaps~~statutory obligations, ~~derivatives~~ surety and appeal bonds, performance bonds and other ~~similar transactions~~ obligations of a like nature, in each case in the ordinary course of business and acceptable to the Majority Lenders in their reasonable discretion (it being agreed and understood that any Liens on cash collateral to secure surety bonds in accordance with any Bonding Arrangements under clause (ii) of the definition thereof is acceptable to the Majority Lenders). (f) encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, provided that (i) such items do not materially impair the use of such property for the purposes intended and (ii) none of which restrictions or easements are violated by existing or proposed structures or land use. (g) Liens arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases entered into by any Loan Party in the ordinary course of business covering the Property under the lease. (h) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies and burdening only deposit accounts or other funds maintained with a creditor depository institution, provided that no such deposit account is a dedicated cash collateral account or is subject to restrictions against access by the depositor in excess of those set forth by regulations promulgated by the Board and no such deposit account is intended by a Loan Party to provide collateral to the depository institution. (i) as to property which is Collateral, any Liens expressly permitted to encumber such Collateral under any Security Document covering such Collateral. (j) Liens encumbering property securing the Indebtedness permitted under Section 7.1(f)(i). (k) Customary liens created pursuant to operating agreements arising in the ordinary course of business;, provided such Liens do not secure Indebtedness and secure only Liabilities which are not delinquent or which are being contested as provided in Section 6.7. (l) Liens created pursuant to the GE Mortgage as in effect on the date hereof or as refinanced in accordance with Section 7.1(h) that secure the GE Note. (m) Liens ~~incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes~~securing the Permitted Second Lien Debt, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property subordinated to ~~be used by the Company or any of its Subsidiaries, provided~~ the Liens ~~are limited~~ securing the Secured Obligations pursuant to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesIntercreditor Agreement.

Appears in 1 contract

Samples: Credit Agreement (RAAM Global Energy Co)

Limitation on Liens. The ~~Company covenants that~~ Parent and the Company shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ cause or ~~incur~~ permit any ~~Lien~~ Guarantor to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind on ~~any property~~ the assets of the Company or any Guarantor securing Indebtedness of the Parent or its Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, exceptRestricted Subsidiaries except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes~~securing Non-Recourse Indebtedness; (c) (A) Liens securing Permitted Funding Indebtedness ~~which are incurred~~ so long as any such Lien shall encumber only (1) the assets originated, acquired or funded with the proceeds of such Indebtedness, assets that consist of Servicing Advances, MSRs, loans, mortgages and other secured loans, mortgage related securities and derivatives, other mortgage related receivables, REO Assets, Residual Assets and other similar assets (or any interests in any of the foregoing) subject to ~~extend~~and pledged to secure such Indebtedness, ~~renew~~ and (2) any intangible contract rights and other accounts, documents, records and other assets directly related to the assets set forth in the preceding clause (1) of this clause (iii)(A) and any proceeds thereof, and (B) Liens in any cash collateral or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~restricted accounts securing Permitted Funding Indebtedness; (d) Liens ~~created in substitution of or as replacements for~~ securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that has been secured by a Lien permitted ~~by clause (a), (b) or (c)~~ under this Indenture and that has been incurred in accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on~~ such Liens (A) are, when taken as a ~~good faith determination of the Company~~whole, ~~the property encumbered under any such substitute or replacement Lien is substantially similar in nature~~ not materially less favorable to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later Holders than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the ~~Company’s~~ Indebtedness being Refinanced, and (B) do not extend to or cover any property or assets of the Parent or its Restricted Subsidiaries not securing the Indebtedness so Refinanced (or property of ~~a Subsidiary for~~ the ~~purpose of roads, pipelines, utility transmission~~ same type and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialvalue), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Ocwen Financial Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for the following Liens which are expressly permitted: (a) Liens existing as of the Issue Date of to the ~~Notes;~~ extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes;~~ securing Senior Debt and Liens securing Guarantor Senior Debt; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ the Securities and the Guarantees; (d) Liens ~~created in substitution~~ of the Company or ~~as replacements for~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any ~~Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination~~ Restricted Subsidiary of the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced;~~ ; (e) Liens ~~on any assets, created solely to secure obligations~~ securing Refinancing Indebtedness which is incurred to ~~finance the refurbishment, improvement or construction of such asset,~~ Refinance any Indebtedness which ~~obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction,~~ has been secured by a Lien permitted under this Indenture and ~~all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price~~ which has been incurred in ~~connection~~ accordance with the ~~acquisition~~ provisions of this Indenture; provided, however, that such Liens (~~including acquisition through merger or consolidation~~x) ~~of any property, including Capital Lease transactions in connection with any such acquisition,~~ are no less favorable to the Holders and ~~(ii) Liens existing on any property at~~ -------- ------- are not more favorable to the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (hy) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (~~i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.~~f)

Appears in 1 contract

Samples: Indenture (MTL Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and will not cause or permit any of its Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Subsidiaries (whether owned on the Issue Date or acquired after the Issue Date), ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or any Guarantee, the Notes and such Guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes and the Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Senior Indebtedness ~~which are incurred to extend, renew~~ and/or Guarantor Senior Indebtedness; (C) Liens securing the Notes and the Guarantees; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Subsidiary of the Company on assets of any Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination~~ such Liens (1) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the ~~Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is~~ Indebtedness being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Refinanced and (ii2) ~~Liens existing on~~ do not extend to or cover any property ~~at the time~~ or assets of ~~acquisition thereof or at the time of acquisition by~~ the Company or any of its Subsidiaries ~~of any Person then owning such~~ not securing the Indebtedness so Refinanced (other than property ~~whether~~ or ~~not such existing~~ assets subject to Liens ~~were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to~~ under clause (iB) above)~~, the Liens shall be given within 12 months after such acquisition~~ ; and ~~shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;~~ (gF) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Permitted Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Atc Group Services Inc /De/)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or any Guarantee, the Notes and such Guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes and the Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred~~ and other obligations under ~~this Section 3.1;~~ the New Credit Facility; (dC) Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ securing the Notes and the Guarantees; (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of ~~its Subsidiaries;~~ the Company; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (I) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced and (II) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course~~ Indebtedness so Refinanced; and (F) Permitted Liens. -61- SECTION 4.18. Limitation on Guarantees of ~~business~~ Indebtedness by Restricted Subsidiaries. --------------------------- The Company shall not permit any of its Restricted Subsidiaries that is not a Guarantor (whether formed or acquired before or after the Issue Date), directly or indirectly, to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure guarantee the payment of ~~money~~any Indebtedness under the New Credit Facility, ~~none of which, in the opinion of counsel, are~~ unless such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1Restricted Subsidiary, the Company and ~~any~~ the Trustee execute and deliver a supplemental indenture evidencing such Restricted Subsidiary's Guarantee of ~~its Subsidiaries may, without equally and ratably securing~~ the ~~Notes, create or incur Liens which would otherwise be subject~~ Notes pursuant to the ~~restrictions set forth~~ terms of the Indenture, such Guarantee of the Notes to be a senior unsecured obligation of such Subsidiary; provided that if any such Restricted Subsidiary who becomes a Guarantor as described above is released from its guarantee with respect to Indebtedness and obligations outstanding under the New Credit Facility, such Restricted Subsidiary who becomes a Guarantor as described above shall automatically be released from its obligations as a Guarantor. Nothing in this Section ~~3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date~~ 4.18 shall be construed to permit any Restricted Subsidiary of the ~~Notes and secured~~ Company to incur Indebtedness otherwise prohibited by ~~Liens not permitted under this~~ Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes4.12.

Appears in 1 contract

Samples: Indenture (Vista Eyecare Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or any Guarantee, the Notes and such Guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes and the Guarantees are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Indebtedness ~~which are~~ incurred pursuant to ~~extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ Bank Credit Facilities; (dC) Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ securing the Notes and the Guarantees; (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or a Restricted Subsidiary of the Company on assets of any Subsidiary of ~~its Subsidiaries;~~ the Company; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any In- debtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (a) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced and (b) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Penhall Co)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, ~~in order~~ or assign or otherwise convey any right to ~~secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~receive income or profits therefrom unless: (a) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment of the Securities, the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (b) in all other cases, the Securities are equally and ratably secured, except for the following Liens which are expressly permitted: (i) Liens existing as of the Issue ~~Date of the Notes~~Date; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens ~~existing on~~ securing Senior Debt, Guarantor Senior Debt and Indebtedness (including any ~~property at~~ Guarantee) incurred by a Restricted Subsidiary under the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofCredit Agreement; (giii) ~~pre-existing~~ Liens ~~on assets acquired after~~ securing the ~~Issue Date of the Notes~~Securities or any Subsidiary Guarantee; (hiv) Liens in favor of the Company or a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of ~~its Subsidiaries~~the Company; (iv) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens: -------- ------- (A) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (B) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness ~~incurred solely for the purpose of financing the acquisition of such property~~so Refinanced; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (lvi) Liens securing ~~xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course~~ Indebtedness of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect Restricted Subsidiaries of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are Company so long as such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would Indebtedness is otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.Indenture; and

Appears in 1 contract

Samples: Indenture (RPP Capital Corp)

Limitation on Liens. The Company ~~covenants that the Company and~~ shall not, nor shall it permit any of its Restricted Subsidiaries ~~will not create~~ to, create, incur, assume or ~~incur~~ permit to exist any Lien on any ~~property~~ of ~~the Company~~ their respective properties or ~~any of its Subsidiaries~~assets, whether now owned or hereafter acquired, ~~in order to secure~~ or upon any ~~Indebtedness~~income or profits therefrom, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (ai) ~~Liens existing as of the Issue Date of the Notes~~Permitted Liens; (bii) Liens on shares of capital stock of Subsidiaries of the Company (and the proceeds thereof) securing obligations under the Senior Credit Facilities; (iii) Liens on receivables subject to a Receivable Financing Transaction; (iv) Liens arising in connection with industrial development bonds or other industrial development, pollution control or other tax-favored or government-sponsored financing transactions, provided that such Liens do not at any time encumber any property other than the property financed by such transaction and other property, assets or revenues related to the property so financed on which Liens are customarily granted in connection with such transactions (in each case, together with improvements and attachments thereto); (v) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any ~~assets, created solely to secure obligations incurred to finance the refurbishment, improvement~~ assets or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor properties of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries to secure obligations under the Notes; (vi) Extensions, renewals and replacements of any Lien described in subsections (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; through (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessabove; and (xvii) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements),~~ Other Liens in ~~whole or in part,~~ respect of ~~any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1,~~ Indebtedness of the Company and ~~any of~~ its Restricted Subsidiaries ~~may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth~~ in ~~this Section 3.1 if, after giving effect thereto, the~~ an aggregate principal amount ~~of Indebtedness incurred after the Issue Date of the Notes and secured by Liens~~ at any time not ~~permitted under this Section 3.1 does not exceed the greater of (i) 15~~exceeding 10% of Consolidated ~~Net Worth calculated as of the date of the creation or incurrence of~~ Assets at such ~~Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~time.

Appears in 1 contract

Samples: Indenture (Lear Corp /De/)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create~~ Pledge, mortgage or ~~incur~~ otherwise encumber or subject to or permit to exist upon or be subjected to any Lien (including any conditional sale or other title retention agreement and any lease in the nature thereof) on any ~~property~~ of ~~the Company~~ its Properties or any of ~~its Subsidiaries~~the Collateral of any kind or character, whether now owned or hereafter acquired, ~~in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (a) ~~Liens existing as of the Issue Date of the Notes~~Released Liens; (b) Liens ~~granted after~~ existing on the ~~Issue Date of the Notes created in favor of the Securityholders of the Notes~~date hereof and listed on Schedule 3.6; (c) ~~Liens securing Indebtedness~~ Liens, pledges or deposits for worker's compensation, unemployment insurance, old age benefits or social security obligations, taxes, assessments, statutory obligations or other similar charges, good faith deposits made in connection with the Purchasing Card Program, tenders, contracts or leases to which ~~are incurred~~ the Borrower or any Subsidiary is a party, deposits in amounts approved by the Bankruptcy Court prior to ~~extend, renew~~ the date hereof or ~~refinance Indebtedness which is secured~~ otherwise approved by ~~Liens permitted~~ the Required Lenders with Entergy Kxxx Trading Company to secure margin accounts on gas trading contracts or other deposits required to be ~~incurred under this Section 3.1~~made in the ordinary course of business, provided in each case the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate proceedings and adequate reserves have been provided therefor in accordance with generally accepted accounting principles and that the obligation is not for borrowed money, customer advances, trade payables, or obligations to agricultural producers; (d) ~~Liens created~~ the pledge of assets for the purpose of securing an appeal or stay or discharge in ~~substitution~~ the course of ~~or as replacements for~~ any ~~Lien permitted by clause (a)~~legal proceedings, ~~(b) or (c) of this Section 3.1;~~ provided that ~~based on a good faith determination~~ the aggregate amount of liabilities of the ~~Company~~Borrower or any Subsidiary so secured by a pledge of property permitted under this subsection (d) including interest and penalties thereon, ~~the property encumbered under~~ if any, shall not be in excess of $2,000,000 at any ~~such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced~~one time outstanding; (e) Liens ~~on any assets~~for property taxes and assessments or governmental charges or levies which are not yet due and payable and Liens in certificates of deposit or money market accounts in connection with the Purchasing Card Program; (f) Liens incidental to the conduct of business or the ownership of properties and assets (including warehousemen's and attorneys' liens and statutory landlords' liens) or other liens of like general nature incurred in the ordinary course of business and not in connection with the borrowing of money, ~~created solely~~ provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings and adequate reserves have been provided therefor in accordance with generally accepted accounting principles, consistently applied; (g) minor survey exceptions or minor encumbrances, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to ~~secure obligations incurred to finance~~ the ~~refurbishment, improvement or construction~~ use of ~~such asset~~real properties, which ~~obligations~~ are ~~incurred no later than 12 months after completion~~ necessary for the conduct of ~~such refurbishment, improvement~~ the activities of the Borrower and its Subsidiaries or ~~construction,~~ which customarily exist on properties of corporations engaged in similar activities and ~~all renewals, extensions, refinancings, replacements or refundings~~ similarly situated and which do not in any event materially impair their use in the operation of ~~such obligations~~the business of the Borrower and its Subsidiaries; (h) the interests of lessors under Capitalized Leases; (i) Liens ~~given to secure~~ securing the ~~payment of the purchase price incurred~~ Borrower's and its Subsidiaries' debt, obligations and liabilities in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition industrial revenue bonds issued for their account which are permitted by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (iSection 6.2(b), ~~the~~ provided such Liens ~~shall be given within 12 months after such acquisition and shall~~ attach ~~solely~~ only to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held Property financed by ~~the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of~~ such ~~property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property~~industrial revenue bonds; (j) Liens ~~on any~~ upon tangible personal property ~~in favor of~~ acquired after the ~~United States of America~~ date hereof (by purchase, construction or ~~any State thereof~~ otherwise), or ~~any political subdivision thereof to secure progress or~~ upon other ~~payments or to secure Indebtedness incurred for~~ Property acquired after the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken date hereof as a ~~whole; (u) rights reserved to or vested in others to take or receive any part of the electricity~~capital expenditure, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company Borrower or any of its Subsidiaries, ~~provided~~ each of which Liens either (A) existed on such Property before the ~~Liens are limited to~~ time of its acquisition and was not created in anticipation thereof or (B) was created solely for the ~~property financed and the related real estate; (w) Liens incurred in the creation or existence~~ purpose of ~~leases made~~securing debt representing, or ~~existing on property acquired~~incurred to finance, ~~in the ordinary course of business; and (x) any extension, renewal, substitution~~ refinance or ~~replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1~~refund, the ~~Company and~~ cost of such Property; provided that (i) no such Lien shall extend to or cover any Property of the Borrower or any of its Subsidiaries ~~may~~other than the Property so acquired, ~~without equally~~ and ~~ratably securing~~ (ii) the ~~Notes~~principal amount of debt secured by any such Lien shall not exceed the fair market value of such Property at the time of acquisition, ~~create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto,~~ and (C) the aggregate principal amount of ~~Indebtedness incurred after the Issue Date of the Notes and~~ all debt secured by such Liens shall not ~~permitted under this Section 3.1 does not~~ at any one time exceed $5,000,000; and (k) Liens granted pursuant to the ~~greater~~ Deed of Charge (iShares and Securities) ~~15% of Consolidated Net Worth calculated~~ dated as of November 10, 1998, among J.X. Xxxxxx Cxxxx Bank, a collateral trustee, the ~~date~~ Borrower, and certain of ~~the creation or incurrence~~ its Subsidiaries, Farmland Industries, Inc. and certain of ~~such Lien or~~ its Subsidiaries, and FMCL, as amended by that certain Novation and Variation of Deed of Charge (~~ii) 15% of Consolidated Net Worth calculated~~ Shares and Securities), dated as of ~~the Issue Date of the Notes~~May 7, 2003, by and among Farmland Trinidad Limited, MissChem Trinidad Limited, Farmland Industries, Inc., Mississippi Chemical Corporation, Kxxx Mineral Services, LLC, and JPMorgan Chase Bank, and Farmland MissChem Limited.

Appears in 1 contract

Samples: Term Loan, Revolving Credit, Guarantee and Security Agreement (Mississippi Chemical Corp /MS/)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of (other than Liens securing Indebtedness under the ~~Notes; (b~~Credit Agreement) to the extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred~~ under ~~this Section 3.1;~~ the Credit Agreement; (dC) Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ securing the Notes and the Guarantees, if any; (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (eD) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or ~~any~~ a Wholly Owned Restricted Subsidiary of ~~its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ the Company or on assets of any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor Restricted Subsidiary of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; Company; (~~k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l~~E) Liens securing ~~xxxxxx, swaps, derivatives~~ Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under this Indenture and ~~other similar transactions entered into in the ordinary course of business; (m) Liens~~ which has been incurred in ~~connection~~ accordance with ~~an acquisition~~ the provisions of ~~assets or a project financed on a non-recourse basis;~~ this Indenture; provided, however, that such Liens (na) are no less favorable to the Holders and are not more favorable to the lienholders with respect to such Liens ~~for taxes, assessments or governmental charges for~~ than the ~~then current year and taxes, assessments or governmental charges not then delinquent; (o)~~ Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the ~~Company’s~~ Indebtedness being Refinanced and (b) do not extend to or cover any property or ~~property~~ assets of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.the

Appears in 1 contract

Samples: Indenture (Universal Compression Inc)

Limitation on Liens. ~~The Company covenants that the Company and its Subsidiaries will not create~~ Create or ~~incur~~ permit to exist any Lien on any ~~property of the Company or any of its Subsidiaries,~~ Financed Assets (whether now owned or hereafter acquired), ~~in order to secure any Indebtedness~~except for the following (collectively, ~~without effectively providing that~~ the ~~Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~“Permitted Liens”): (a) Liens ~~existing as of the Issue Date of the Notes~~described on Schedule 6.1 attached hereto; (b) Liens ~~granted after~~ for taxes or other governmental charges not at the ~~Issue Date of the Notes created~~ time delinquent or thereafter payable without penalty or being contested in ~~favor of the Securityholders of the Notes~~good faith by appropriate proceedings and, in each case, for which Borrower maintains adequate reserves; (c) Liens ~~securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1;~~ arising in the ordinary course of business (dsuch as (i) Liens ~~created~~ of carriers, warehousemen, mechanics and materialmen and other similar Liens imposed by law and (ii) Liens in ~~substitution~~ the form of deposits or ~~as replacements for any Lien permitted by clause~~ pledges incurred in connection with worker’s compensation, unemployment compensation and other types of social security (~~a), (b~~excluding Liens arising under ERISA) or (cin connection with surety bonds, bids, performance bonds and similar obligations) ~~of this Section 3.1; provided that based on a~~ for sums not overdue or being contested in good faith ~~determination~~ by appropriate proceedings and not involving any advances or borrowed money or the deferred purchase price of ~~the Company~~property or services and, ~~the property encumbered under any such substitute or replacement Lien is substantially similar~~ in ~~nature to the property encumbered by the otherwise permitted Lien~~ each case, for which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligationsit maintains adequate reserves; (i) Liens ~~given to secure the payment of the purchase price incurred~~ arising in connection with Capital Leases (and attaching only to the ~~acquisition (including acquisition through merger or consolidation) of any property~~property being leased), ~~including Capital Lease transactions in connection with any such acquisition, and~~ (ii) Liens existing on ~~any~~ property at the time of the acquisition thereof ~~or at the time~~ by Borrower (and not created in contemplation of ~~acquisition by the Company or any of its Subsidiaries of any Person then owning~~ such ~~property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause~~ acquisition) and (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hiii) Liens ~~in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or~~ that constitute purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property ~~in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness~~ securing debt incurred for the purpose of financing ~~the cost of acquiring, constructing~~ all or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the ~~electricity~~cost of acquiring such property, ~~gas (either natural or artificial), steam or~~ provided that any ~~by-products generated or produced by or from any~~ such Lien attaches to such property within 20 days of the ~~Company’s or any of its Subsidiaries’ properties or with respect~~ acquisition thereof and attaches solely to ~~any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in~~ the ~~ordinary course of the electricity, gas (either natural or artificial) or steam business~~property so acquired; (ve) ~~Liens created or assumed by the Company or any of its Subsidiaries~~ Attachments, appeal bonds, nonappealable judgments and other similar Liens, for sums not exceeding $1,000,000 arising in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries~~court proceedings, provided the execution or other enforcement of such Liens ~~are limited to the property financed~~ is effectively stayed and the ~~related real estate~~claims secured thereby are being actively contested in good faith and by appropriate proceedings; (wf) Easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens ~~incurred~~ not interfering in ~~the creation or existence of leases made, or existing on property acquired, in~~ any material respect with the ordinary ~~course~~ conduct of ~~business~~the business of Borrower; and (xg) ~~any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to~~ Liens arising under the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesCollateral Documents.

Appears in 1 contract

Samples: Credit Agreement (America First Multifamily Investors, L.P.)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and ~~its Subsidiaries will~~ shall not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Restricted Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom, unless (x) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing~~ the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (y) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (a) Liens existing as of the Issue Date ~~of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens~~ and securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, ~~replacements~~ renewals, replacements, substitutions or refundings of the Obligations secured thereby, provided such ~~obligations; (i)~~ Liens ~~given~~ do not extend to ~~secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger~~ or ~~consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on~~ cover any property ~~at the time~~ or assets of ~~acquisition thereof or at the time of acquisition by~~ the Company or any of its Restricted Subsidiaries ~~of any Person then owning such property whether or~~ not ~~such existing Liens were given to secure the payment~~ securing Indebtedness as of the ~~purchase price~~ Issue Date; (b) Liens securing the Series A Securities and the Series B Securities and Liens in favor of the ~~property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased~~ Trustee and any ~~improvements then~~ Lien granted, in respect of amounts owed to such trustee or ~~thereafter placed thereon and~~ similar institution, to any ~~proceeds thereof;~~ trustee or similar institution under any indenture for Indebtedness permitted by the terms of this Indenture; (gc) ~~pre-existing~~ Liens on assets ~~acquired after the Issue Date~~ of the ~~Notes;~~ Company and its Subsidiaries securing Senior Indebtedness; (hd) Liens in favor of the Company or any Restricted Subsidiary; (e) Liens securing Indebtedness which is incurred to refinance Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of ~~its Subsidiaries; (i) purchase money~~ this Indenture, provided, however, that such Liens do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (if) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Carson Products Co)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Securities, ~~without effectively providing~~ the Securities are secured by Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the ~~Notes shall be~~ Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date of to the ~~Notes; (b)~~ extent and in the manner such Liens ~~granted after~~ are in effect on the Issue ~~Date of the Notes created in favor of the Securityholders of the Notes;~~ Date; (cB) Liens securing ~~Indebtedness which are incurred to extend, renew~~ Senior Debt; (C) Liens securing the Securities and the Guarantees; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ PROVIDED, HOWEVER, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ Liens (I) are no less favorable to the ~~property encumbered by~~ Holders and are not more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (hII) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (~~i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.~~F)

Appears in 1 contract

Samples: Indenture (Metals Usa Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom for purposes of security unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds or such right to receive income or profits, as the case may be, that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~except for (aA) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect on the Issue Date; (B) Liens securing Senior Debt and Liens on assets of Restricted Subsidiaries securing guarantees of Senior Debt; (C) Liens securing the Notes; (bD) Liens ~~granted after the Issue Date~~ of the ~~Notes created in favor~~ Company or a Wholly Owned Restricted Subsidiary of the ~~Securityholders~~ Company on assets of any Restricted Subsidiary of the ~~Notes~~Company; (cE) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance~~ Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1;~~Indenture and which has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (d1) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature are not materially less favorable to the ~~property encumbered by~~ Holders and are not materially more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens ~~shall be given within 12 months after such acquisition and shall attach solely to~~ in respect of the ~~property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof;~~Indebtedness being Refinanced and (g2) ~~pre-existing Liens on~~ do not extend to or cover any property or assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ Restricted Subsidiaries not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xF) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Del Monte Foods Co)

Limitation on Liens. The Company ~~covenants that~~ shall not, and shall not cause or permit any Guarantor to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind on the ~~Company and its Subsidiaries will not create or incur any Lien on any property~~ assets of the Company or any Guarantor securing Indebtedness of the Company or its ~~Subsidiaries, whether now owned~~ Restricted Subsidiaries unless: (a) in the case of Liens securing Indebtedness of the Company or ~~hereafter acquired,~~ its Restricted Subsidiaries that is expressly subordinate or junior in ~~order~~ right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or such Guarantor’s Note Guarantee, the Notes or such Guarantor’s Note Guarantee are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (b) in all other cases, the Notes and any Note Guarantees are equally and ratably secured ~~until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (ai) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (bii) Liens ~~granted after~~ securing Non-Recourse Indebtedness; (iii) (A) Liens securing Permitted Funding Indebtedness so long as any such Lien shall encumber only (1) the ~~Issue Date~~ assets originated, acquired or funded with the proceeds of such Indebtedness, assets that consist of Servicing Advances, MSRs, loans, mortgages and other secured loans, mortgage related securities and derivatives, other mortgage related receivables, REO Assets, Residual Assets and other similar assets (or any interests in any of the ~~Notes created~~ foregoing) subject to and pledged to secure such Indebtedness, and (2) any intangible contract rights and other accounts, documents, records and other assets directly related to the assets set forth in ~~favor~~ the preceding clause (1) of this clause (iii)(A) and any proceeds thereof, and (B) Liens in any cash collateral or restricted accounts securing Permitted Funding Indebtedness; (iv) Liens securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that has been secured by a Lien permitted under this Indenture and that has been incurred in accordance with the provisions of this Indenture; provided, however, that such Liens (A) are, when taken as a whole, not materially less favorable to the Holders than the Liens in respect of the ~~Securityholders~~ Indebtedness being Refinanced, and (B) do not extend to or cover any property or assets of the ~~Notes;~~Company or its Restricted Subsidiaries not securing the Indebtedness so Refinanced (or property of the same type and value); and (v) Permitted Liens. (c) ~~Liens securing Indebtedness which are incurred~~ Any Lien created for the benefit of Holders pursuant to ~~extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under~~ this Section ~~3.1; (d)~~ 4.12 shall be automatically and unconditionally released and discharged upon the release and discharge of each of the related Liens ~~created~~ described in ~~substitution of or as replacements for any Lien permitted by clause (a), (b~~Section 4.12(a) or (cSection 4.12(b) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Noteshereof.

Appears in 1 contract

Samples: Indenture (Ocwen Financial Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien~~ Liens of any kind on ~~any property~~ the assets of the Company or such Subsidiaries securing any Indebtedness of the Company or such Subsidiaries unless: (1) in the case of Liens securing Senior Indebtedness of the Company and the Note Guarantors, the Notes are secured by a Lien on such property, assets or proceeds that is junior in priority to such Liens; (2) in the case of Liens securing Indebtedness of the Company that is expressly subordinate or junior in right of payment to the Notes or Indebtedness of a Note Guarantor that is expressly subordinate or junior in right of payment to its ~~Subsidiaries, whether now owned or hereafter acquired~~Note Guarantee, in ~~order to secure~~ the case of any ~~Indebtedness~~Note Guarantor, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (3) in all other cases, the Notes are equally and ratably secured ~~until such time as such Indebtedness is no longer secured by such Lien, except~~except for: (a) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of~~ securing the Notes; (c) Liens securing ~~Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~reverse repurchase agreement Obligations and Non-Recourse Indebtedness; (d) Liens ~~created in substitution of or as replacements for~~ securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that has been secured by a Lien permitted ~~by clause (a), (b) or (c)~~ under this Indenture and that has been incurred in accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Liens: (i) are no less favorable to the Holders than the Liens ~~given to secure the payment~~ in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced; and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time of acquisition thereof~~ or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets ~~acquired after the Issue Date of the Notes; (h) Liens in favor~~ of the Company ~~or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by~~ not securing the ~~Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Thornburg Mortgage Inc)

Limitation on Liens. (a) The Company ~~covenants~~ will not, and will not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Liens upon any of their respective properties or assets (including, without limitation, any asset in the form of the right to receive payments, fees or other consideration or benefits) whether owned on the Issue Date or acquired after the Issue Date, other than: (1) Liens granted by the Company on property or assets of the Company securing Indebtedness of the Company that is permitted by this Indenture and that is pari passu with the Securities; provided, that the Securities are secured on an equal and ratable basis with such Liens; (2) Liens granted by the Company on property or assets of the Company securing Indebtedness of the Company that is permitted by this Indenture and that is subordinated to the Securities; provided, that the Securities are secured by Liens ranking prior to such Liens; (3) Permitted Liens; (4) Liens in respect of Acquired Indebtedness permitted by this Indenture; provided, that the Liens in respect of such Acquired Indebtedness secured such Acquired Indebtedness at the time of the incurrence of such Acquired Indebtedness and such Liens and the Acquired Indebtedness were not incurred by the Company or by the Person being acquired or from whom the assets were acquired in connection with, or in anticipation of, the incurrence of such Acquired Indebtedness by the Company, and provided, further that such Liens in respect of such Acquired Indebtedness do not extend to or cover any property or assets of the Company or of any Restricted Subsidiary of the Company other than the property or assets that secured the Acquired Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of the Company; and (5) Liens arising from claims of holders of Indebtedness against funds held in a defeasance trust for the benefit of such holders. (b) In the event that paragraph (a) of this Section 3.9 no longer applies to the Company and its Restricted Subsidiaries ~~will not create or incur any Lien on any property~~ in light of the ~~Company or any of its Subsidiaries~~circumstances set forth in Section 3.1 hereof, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that except with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, between the Company and any ~~of its~~ Restricted Subsidiaries, the Company will not incur or guarantee (or permit Restricted Subsidiaries ~~may,~~ to incur or guarantee) any Secured Debt other than Permitted Secured Debt without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesSecurities.

Appears in 1 contract

Samples: Indenture (Dana Corp)

Limitation on Liens. The Company ~~covenants that the Company and its Subsidiaries~~ will not ~~create~~ create, incur, assume or ~~incur~~ suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, in ~~order~~ each case, created or acquired to secure ~~any Indebtedness~~Indebtedness of the Company, ~~without effectively providing~~ unless, except in the case of Liens securing Indebtedness that is subordinate or junior in right of payment to the ~~Notes~~ Securities which shall not be permitted, the Securities are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (a) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect as of the ~~Notes~~Issue Date; (b) Liens ~~granted after~~ securing the ~~Issue Date~~ Securities and Liens securing Indebtedness guarantees of Indebtedness under the ~~Notes created in favor of the Securityholders of the Notes~~Credit Agreement; (c) Liens ~~securing Indebtedness which are incurred to extend, renew~~ of the Company or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~a Restricted Subsidiary of the Company on assets of any Subsidiary of the Company; (d) Liens ~~created in substitution of or as replacements for any~~ securing Refinancing Indebtedness which is incurred to Refinance Indebtedness which has been secured by a Lien permitted ~~by clause (a), (b) or (c)~~ under this Indenture and which has been incurred in accordance with the provisions of this ~~Section 3.1~~Indenture; provided that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e)~~ Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) are no less favorable to the Holders and are no more favorable to the lienholders with respect to such Liens ~~given to secure~~ than the ~~payment~~ Liens in respect of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, Indebtedness being Refinanced and (ii) ~~Liens existing on~~ do not extend to or cover any property ~~at the time~~ or assets of ~~acquisition thereof or at the time of acquisition by~~ the Company or any of its Subsidiaries ~~of any Person then owning such property whether or~~ not ~~such existing Liens were given to secure~~ securing the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (Malek Frederic V)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ cause or ~~incur~~ permit any ~~Lien on~~ of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind against or upon any property or assets of the Company or any of ~~its~~ the Restricted Subsidiaries, whether now owned or hereafter acquired, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (1) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or a Subsidiary Guarantee, the Notes or such Subsidiary Guarantee is secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (2) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except~~except for: (aA) Liens existing as of the Issue Date of to the ~~Notes~~extent and in the manner such Liens are in effect on the Issue Date; (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c~~B) Liens securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens~~ permitted to be incurred ~~under this Section 3.1~~pursuant to clause (2) or (11) of the definition of “Permitted Indebtedness” and all other Obligations relating thereto; (dC) Liens ~~created in substitution of~~ securing the Notes or ~~as replacements for~~ any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replacedSubsidiary Guarantee; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (hD) Liens in favor of the Company or any ~~of its Subsidiaries~~Guarantor; (iE) ~~purchase money~~ Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured by a Lien permitted under this Supplemental Indenture and which has been incurred in accordance with the provisions of this Supplemental Indenture; provided, however, that such Liens: (I) are no less favorable to Holders of the Notes and are not more favorable to the lienholders with respect to such Liens than the Liens in respect of the Indebtedness being Refinanced; and (II) do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Restricted Subsidiaries in not securing the ~~ordinary course of business to secure the purchase price of such property or to secure~~ Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of businessso Refinanced; and (xF) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: First Supplemental Indenture (Tenneco Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not create or incur any Lien on any property of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or permit any of its Subsidiaries to, and the Parent Guarantor and the Development Companies will not, directly or indirectly, create, incur, assume or suffer to exist any Lien in or on any right, title or interest to any of ~~any Person then owning such property whether~~ their respective properties or ~~not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause~~ assets, except (i)a) Permitted Liens, the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (~~g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h~~b) Liens in favor of the ~~Company or any~~ Collateral Agent for the benefit of ~~its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held~~ the Secured Creditors created by the ~~Company or~~ Collateral Documents and the Intercreditor Agreement and any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) other future Liens ~~on any property~~ in favor of the ~~United States~~ Collateral Agent for the benefit of ~~America~~ the Secured Creditors affecting other Property of the Parent Guarantor, the Company, its Subsidiaries or ~~any State thereof~~ the Development Companies securing the Indebtedness described in the Intercreditor Agreement or ~~any political subdivision thereof~~ the Collateral Documents, (c) Liens incurred pursuant to ~~secure progress~~ Permitted FF&E Financing incurred in accordance with the provisions of clause (c) under Section 5.11, which Liens may be exclusive Liens on the acquired or ~~other payments or~~ leased FF&E, (d) Liens in favor of the Collateral Agent, for the benefit of the Secured Creditors to secure Indebtedness ~~incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment~~ described in the ~~ordinary course~~ Intercreditor Agreement or the Collateral Documents, in Property used as substitute Property in consideration of ~~business~~ the release of ~~electricity~~Property in which a Lien is granted pursuant to the Collateral Documents or the Intercreditor Agreement, ~~gas~~ (~~either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l~~e) Liens securing ~~xxxxxx~~Subordinated Debt; provided, ~~swaps, derivatives and other similar transactions entered into in~~ that the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than instrument creating such Lien contains provisions expressly subordinating such Subordinated Debt to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and ~~secured by~~ the 8% Notes and subordinating such Liens ~~not permitted under this Section 3.1 does not exceed~~ to the ~~greater of~~ Liens securing the Notes and the 8% Notes, and (if) ~~15% of Consolidated Net Worth calculated~~ a Lien on the House Bank (as defined in the Security Agreement (House Bank)) in favor of the ~~date of~~ Minimum Payment Guarantor. Notwithstanding the ~~creation~~ foregoing, Liens granted pursuant to clauses (b) and (d) above shall only be released in accordance with the Intercreditor Agreement or ~~incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of~~ the ~~Issue Date of the Notes~~Collateral Documents.

Appears in 1 contract

Samples: Indenture (Jazz Casino Co LLC)

Limitation on Liens. The Company ~~covenants that the Company and its Subsidiaries~~ will ~~not create~~ not, directly or indirectly, incur or suffer to exist any Lien (other than existing Liens) securing Specified Indebtedness of any nature whatsoever on ~~any property of the Company or~~ any of its ~~Subsidiaries~~properties or assets, whether ~~now~~ owned at the issue date of the Notes or ~~hereafter~~ thereafter acquired, ~~in order to secure any Indebtedness,~~ without ~~effectively providing that~~ making effective provision for securing the Notes ~~shall be~~ equally and ratably with (or, if the obligation to be secured ~~until such time~~ by the Lien is subordinated in right of payment to the Notes, prior to) the obligations so secured for so long as such obligations are so secured. The Lien, if granted, to secure the Notes may also secure obligations in addition to Specified Indebtedness. Any Lien created to secure the Notes pursuant to this Section 1007 may provide by its terms that such Lien will be automatically and unconditionally released and discharged upon the full and unconditional release and discharge of the Lien securing the Specified Indebtedness ~~is no longer secured by~~ and that the holders of some or all of such Specified Indebtedness may exclusively control the disposition of property subject to such Lien~~, except:~~ . The foregoing restrictions in this Section 1007 shall not apply to (a) Liens ~~existing as~~ to secure Acquired Debt; provided, however, that (i) such Lien attaches to the acquired property prior to the time of the ~~Issue Date~~ acquisition of ~~the Notes;~~ such property and (ii) such Lien does not extend to or cover any other property; and (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are~~ to secure indebtedness incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financingrefinance, in whole or in part, ~~the acquisition or construction of property to be used~~ debt secured by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clause (a) or this ~~Section 3.1. Notwithstanding anything~~ clause (b) so long as such Lien does not extend to any other property (other than improvements and accessions to the ~~contrary in this Section 3.1,~~ original property) and the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of ~~Indebtedness incurred after the Issue Date of the Notes and~~ indebtedness so secured ~~by Liens~~ is not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notesincreased."

Appears in 1 contract

Samples: Supplemental Indenture (Level 3 Communications Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not cause or permit any of its Restricted Subsidiaries ~~will not create~~ to, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company or any of its Restricted Subsidiaries, whether ~~now~~ owned on the Issue Date or ~~hereafter acquired~~acquired after the Issue Date, or any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless: (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness, without effectively providing that~~ the Notes ~~shall be~~ or any guarantee, the Notes and such guarantee, as the case may be, are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens, and (ii) in all other cases, the Notes and the guarantees are equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as of the Issue Date of the Notes; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations;secured. The following paragraph shall not apply to (i) Liens ~~given to secure the payment~~ securing Senior Indebtedness and Guarantor Senior Indebtedness outstanding as of the ~~purchase price~~ date of the Indenture or incurred after the date of the Indenture; provided, that such Senior Indebtedness or Guarantor Senior Indebtedness is incurred in ~~connection~~ accordance with ~~the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and~~ Section 4.9; (ii) Liens ~~existing on any property at the time~~ of ~~acquisition thereof or at the time of acquisition by~~ the Company or ~~any~~ a Wholly-Owned Restricted Subsidiary of ~~its Subsidiaries~~ the Company on assets of any ~~Person then owning such property whether or not such existing Liens were given to secure the payment~~ Restricted Subsidiary of the ~~purchase price~~ Company; (iii) Liens securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness which has been secured by a Lien permitted under the Indenture and which has been incurred in accordance with the provisions of the ~~property~~ Indenture; provided, however, that such Liens (1) are no less favorable to ~~which they attach; provided that~~ the Holders and are not more favorable to the lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (h2) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries;~~ Restricted Subsidiaries not securing the Indebtedness so Refinanced (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such other than property or assets subject to ~~secure Indebtedness incurred solely for the purpose of financing the acquisition of such property;~~ Liens under clause (jB) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialabove), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (xiv) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the NotesPermitted Liens.

Appears in 1 contract

Samples: Indenture (Aerojet Ordnance Tennessee Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ shall not, and shall not permit any of its Restricted Subsidiaries ~~will not create~~ to, create, incur, assume or ~~incur~~ suffer to exist any ~~Lien on~~ Liens of any kind against or upon any of its property or assets of the Company or any of its ~~Subsidiaries~~Restricted Subsidiaries whether owned on the Issue Date or acquired after the Issue Date, ~~whether now owned~~ or ~~hereafter acquired~~any proceeds therefrom, or assign or otherwise convey any right to receive income or profits therefrom unless (i) in ~~order~~ the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment to ~~secure any Indebtedness~~the Notes, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (ii) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~ except for (aA) Liens existing as of the Issue Date to the extent and in the manner such Liens are in effect as of the ~~Notes;~~ Issue Date; (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c~~B) Liens securing ~~Indebtedness which are incurred to extend, renew~~ Senior Debt and Liens on assets of Restricted Subsidiaries securing guarantees of Senior Debt; (C) Liens securing the Notes; (D) Liens of the Company or ~~refinance~~ a Wholly Owned Restricted Subsidiary of the Company on assets of any Restricted Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is incurred to Refinance Indebtedness which has been secured by ~~Liens~~ a Lien permitted ~~to be incurred~~ under this ~~Section 3.1; (d) Liens created~~ Indenture and which has been incurred in ~~substitution of or as replacements for any Lien permitted by clause (a), (b) or (c)~~ accordance with the provisions of this ~~Section 3.1~~Indenture; ~~provided~~ provided, however, that ~~based on a good faith determination of the Company, the property encumbered under any~~ such ~~substitute or replacement Lien is substantially similar in nature~~ -------- ------- Liens (A) are no less favorable to the ~~property encumbered by~~ Holders and are no more favorable to the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that lienholders with respect to ~~clause (i),~~ such Liens than the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date in respect of the ~~Notes;~~ Indebtedness being Refinanced and (hB) ~~Liens in favor~~ do not extend to or cover any property or assets of the Company or any of its ~~Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its~~ Restricted Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so Refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (iF) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Collins & Aikman Floor Coverings Inc)

Limitation on Liens. The Company ~~covenants that~~ will not, directly or indirectly, create, incur, assume or permit or suffer to exist any Liens of any kind on the ~~Company and its Subsidiaries will not create or incur any Lien on any property~~ assets of the Company or any of its Subsidiaries, whether now owned or hereafter acquired, in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such securing Indebtedness ~~is no longer secured by such Lien, except~~except for: (a1) Liens existing ~~as of~~ on the ~~Issue~~ Signing Date ~~of the Notes;~~ (~~b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c)~~ excluding Liens securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens~~ permitted to be incurred ~~under this Section 3.1~~pursuant to clause (1) of the definition of “Permitted Indebtedness”) to the extent and in the manner such Liens are in effect on the Signing Date; (d2) Liens ~~created in substitution~~ securing Non-Recourse Indebtedness so long as such Lien shall encumber only (i) any Equity Interests of ~~or as replacements for any Lien permitted by clause (a)~~the Subsidiary which owes such Indebtedness, (bii) the assets originated, acquired or funded with the proceeds of such Non-Recourse Indebtedness and (ciii) ~~of this Section 3.1; provided that based on a good faith determination of the Company~~any intangible contract rights and other accounts, ~~the~~ documents, records and other property ~~encumbered under any such substitute or replacement Lien is substantially similar in nature~~ directly related to the ~~property encumbered by the otherwise permitted Lien which is being replaced~~foregoing; (eA) Liens on securing Permitted Funding Indebtedness or MTM MSR Indebtedness so long as any ~~assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of~~ such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; Lien shall encumber only (i) ~~Liens given~~ the assets originated, acquired or funded with the proceeds of such Indebtedness, assets that consist of Servicing Advances, MSRs, loans, mortgages and other secured loans, mortgage-related securities and derivatives, other mortgage related receivables, REO Assets, Residual Assets and other similar assets (or any interests in any of the foregoing) subject to and pledged to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such ~~acquisition~~Indebtedness, and (ii) ~~Liens existing on~~ any ~~property at~~ intangible contract rights and other accounts, documents, records and other assets directly related to the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to assets set forth in clause (i~~), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon~~ ) and any proceeds ~~thereof~~thereof and (B) Liens in any cash collateral or restricted accounts securing Permitted Funding Indebtedness; (g4) ~~pre-existing~~ Liens ~~on assets acquired after~~ securing Refinancing Indebtedness that is incurred to Refinance any Indebtedness that was previously so secured by a Lien permitted under the ~~Issue Date~~ Note Purchase Agreement and that has been incurred in accordance with the provisions of the ~~Notes;~~ Note Purchase Agreement; provided, however, that such Liens (hi) are, when taken as a whole, not materially less favorable to the Holders than the Liens in ~~favor~~ respect of the Indebtedness being Refinanced, and (ii) do not extend to or cover any property or assets of the Company or ~~any of~~ its ~~Subsidiaries;~~ Restricted Subsidiaries not securing the Indebtedness so Refinanced (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of ~~a Subsidiary for~~ the ~~purpose of roads, pipelines, utility transmission~~ same type and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialvalue), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Note and Warrant Purchase Agreement (Ocwen Financial Corp)

Limitation on Liens. The Company ~~covenants that the Company and its Subsidiaries will not create~~ shall not, directly or ~~incur~~ indirectly, create, incur, assume or permit or suffer to exist any ~~Lien on~~ Liens of any kind against or upon any property or assets of the Company whether owned on the Issue Date or acquired after the Issue Date, or any ~~of its Subsidiaries~~proceeds therefrom, ~~whether now owned~~ or ~~hereafter acquired, in order~~ assign or otherwise convey any right to ~~secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except~~receive income or profits therefrom unless: (a) in the case of Liens securing Indebtedness that is expressly subordinate or junior in right of payment of the Securities, the Securities are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens; and (b) in all other cases, the Securities are equally and ratably secured, except for the following Liens which are expressly permitted: (i) Liens existing as of the Issue ~~Date of the Notes~~Date; (b) Liens granted after the Issue Date of the Notes created in favor of the Securityholders of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens ~~existing on~~ securing Senior Debt, including, without limitation, Indebtedness (including any ~~property at the time of acquisition thereof or at the time of acquisition~~ guarantee) incurred by the Company ~~or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure~~ under the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereofCredit Agreement; (giii) ~~pre-existing~~ Liens ~~on assets acquired after~~ securing the ~~Issue Date of the Notes~~Securities; (hiv) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens ~~created or assumed~~ securing Refinancing Indebtedness which is incurred to Refinance any Indebtedness (including, without limitation, Acquired Indebtedness) which has been secured by ~~the Company or any of its Subsidiaries~~ a Lien permitted under this Indenture and which has been incurred in ~~connection~~ accordance with the ~~issuance~~ provisions of ~~tax-exempt state~~ this Indenture; PROVIDED, HOWEVER, that such Liens: (a) are no less favorable to the Holders and ~~local bonds for purposes of financing, in whole or in part,~~ are not more favorable to the ~~acquisition or construction of property~~ lienholders with respect to ~~be used by the Company or any of its Subsidiaries, provided~~ such Liens than the Liens ~~are limited to~~ in respect of the ~~property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business~~Indebtedness being Refinanced; and (xb) do not extend to or cover any ~~extension, renewal, substitution~~ property or ~~replacement (or successive extensions, renewals or replacements), in whole or in part,~~ assets of ~~any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1,~~ the Company ~~and any of its Subsidiaries may, without equally and ratably~~ not securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ so Refinanced; and (ivi) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Salt Holdings Corp)

Limitation on Liens. The ~~Company covenants that the Company~~ Borrower shall not, and ~~its Subsidiaries will~~ shall not ~~create~~ permit any other Restricted Person to, create, assume or ~~incur~~ permit to exist any Lien ~~on any property of the Company~~ upon or with respect to any of its ~~Subsidiaries, whether~~ properties or assets now owned or hereafter acquired, ~~in order~~ except the following Liens (to ~~secure any Indebtedness~~the extent permitted by this Section, ~~without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~herein called “Permitted Liens”): (a) Liens existing as on the date of this Agreement and listed in the ~~Issue Date of the Notes~~Disclosure Schedule; (b) Liens ~~granted after~~ imposed by any Governmental Authority for taxes, assessments or charges (i) not yet due or the ~~Issue Date~~ validity of which is being contested in good faith and by appropriate proceedings, if necessary, for which adequate reserves are maintained on the ~~Notes created~~ books of any Restricted Person in ~~favor of~~ -57- accordance with GAAP or (ii) which could not, individually or in the ~~Securityholders of the Notes~~aggregate be reasonably expected to have a Material Adverse Effect; (c) ~~Liens securing Indebtedness which are incurred to extend~~pledges or deposits of cash or securities under worker’s compensation, ~~renew~~ unemployment insurance or ~~refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1~~other social security legislation; (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens ~~created in substitution of or as replacements for any Lien permitted by clause~~ (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) including Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) property of any ~~property~~Restricted Person in the possession of storage facilities, ~~including Capital Lease transactions in connection with any such acquisition, and (ii~~pipelines or barges) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries arising in the ordinary course of business for amounts (i) which are not more than sixty (60) days past due or the validity of which is being contested in good faith and by appropriate proceedings, if necessary, and for which adequate reserves are maintained on the books of any Restricted Person in accordance with GAAP or (ii) with respect to which failure to make payment could not reasonably be expected to have a Material Adverse Effect; (e) deposits of cash or securities to secure the ~~purchase price~~ performance of ~~such property or to secure Indebtedness incurred solely~~ bids, trade contracts (other than for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiringborrowed money), ~~constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity~~leases, ~~gas (either natural or artificial) or steam~~statutory obligations, ~~accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx~~surety and appeal bonds, ~~swaps, derivatives~~ performance bonds and other ~~similar transactions entered into~~ obligations of a like nature incurred in the ordinary course of business; (mf) Liens ~~incurred~~ on deposits of cash or securities in ~~connection with~~ favor of the seller of any property intended to be acquired in an ~~acquisition of assets or a project financed on a non-recourse basis~~Investment permitted pursuant to Section 7.06 to be applied against the purchase price for such Investment; (ng) Liens ~~for taxes~~arising pursuant to customary provisions in joint venture agreements or arrangements, ~~assessments~~ limited liability company agreements and other similar agreements relating solely to obligations of the Person granting such Liens to secure obligations under such joint venture, limited liability company or ~~governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent~~other similar agreement; (oh) ~~Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’~~easements, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-~~way~~ way, restrictions and other similar ~~purposes; (s)~~ encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning ~~ordinances, regulations, reservations,~~ restrictions, ~~covenants~~easements, ~~party wall agreements~~licenses, ~~conditions~~ restrictions on the use of ~~record and other encumbrances, other than to secure the payment of money, none of~~ real property or minor imperfections in title thereto which, in the ~~opinion of counsel~~aggregate, are ~~such as to~~ not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ~~proper operation and development~~ ordinary conduct of ~~the affected property for its intended use in the Company’s business or~~ the business of any ~~of its Subsidiaries~~Restricted Person; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (ui) rights reserved to or vested in ~~others~~ any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of law, to ~~take~~ revoke or ~~receive~~ terminate any ~~part of the electricity~~such right, ~~gas~~ power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process; (~~either natural~~ j) rights reserved to or ~~artificial), steam~~ vested by Law in any Governmental Authority to control or regulate in any ~~by-products generated or produced by or from~~ manner any of the ~~Company’s~~ properties of any Restricted Person or the use thereof or the rights and interests of any Restricted Person therein under any and all Laws; (k) rights reserved to the grantors of ~~its Subsidiaries’~~ any properties of any Restricted Person, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith; (l) inchoate Liens in respect of pending litigation or with respect to ~~any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are~~ a judgment that has not resulted in ~~use in the ordinary course~~ an Event of ~~the electricity, gas (either natural or artificial) or steam business~~Default under Section 8.01; (vm) statutory Liens in respect of payables; (n) any Lien securing Indebtedness permitted by Section 7.01(g) or other obligations of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or ~~assumed by the Company or any of its Subsidiaries~~ in connection with ~~the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the~~ such acquisition or ~~construction~~ such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property of ~~property to be used by~~ the ~~Company~~ Borrower or any Subsidiary, and (iii) such Lien shall secure only those obligations which it secures on the date of ~~its Subsidiaries~~such acquisition or the date such Person becomes a Subsidiary, ~~provided~~ as the ~~Liens are limited to the property financed and the related real estate~~case may be; (wo) Liens ~~incurred in the creation or existence of leases made~~securing Indebtedness permitted by Sections 7.01(f), or ~~existing~~ 7.01(h); (p) Liens on cash margin collateral securing Hedging Contracts permitted under Section 7.10; (q) Liens in respect of operating leases covering only the property ~~acquired~~subject thereto; (r) Liens on Equity Interests of Unrestricted Persons (other than Liens on Equity Interests in ETP and Regency) and joint ventures securing Indebtedness or other obligations of such Unrestricted Person or joint venture; (s) Liens securing (i) Revolving Obligations in an original principal amount not to exceed $1,000,000,000, the Lender Hedging Obligations secured ratably thereunder and the Other Hedging Obligations, (ii) Existing Term Loan Obligations in an original principal amount not to exceed $1,400,000,000, (iii) for so long as the Senior Note Obligations or any Senior Note Refinancing Indebtedness are required pursuant to the terms of the Indenture or the documentation governing the Senior Note Refinancing Indebtedness to be equally and ratably secured with the obligations under this Agreement, the Senior Note Obligations or Senior Note Refinancing Indebtedness, (iv) the Obligations and/or any Term Loan Refinancing Indebtedness and (v) obligations for other Indebtedness incurred pursuant to Section 7.01(m); (t) Liens, (i) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Restricted Person in the ordinary course of business, and (ii) on assets being Disposed of by any Restricted Person pursuant to merger agreements, stock or asset purchase agreements and similar agreements in respect of the Disposition of such assets, provided that such merger agreement, stock or asset purchase agreement or similar agreement in respect of the Disposition of such asset is permitted pursuant to the terms of this Agreement; and (xu) Liens incurred with respect to obligations that do not in the aggregate exceed $50,000,000 at any ~~extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1~~time outstanding. Notwithstanding ~~anything~~ any of the foregoing to the ~~contrary in this Section 3.1~~contrary, other than as permitted by clause (s) above, no Liens of the ~~Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions~~ kind set forth in ~~this Section 3.1 if~~clauses (a) through and including (u) above shall be permitted on the Equity Interests of ETP, ~~after giving effect thereto~~ETP GP, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation ETP LLC, Regency, Regency GP or ~~incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Regency LLC.

Appears in 1 contract

Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)

Limitation on Liens. The Company ~~covenants that~~ shall not and shall not permit any Subsidiary to create, incur, assume or suffer to exist any Liens upon any of their respective assets unless the Securities are equally and ratably secured by the Liens covering such assets, except for (i) Liens on assets of the Company securing Senior Indebtedness and Liens on assets of a Subsidiary Guarantor which, at the time of incurrence, secure Guarantor Senior Indebtedness; (ii) existing and future Liens securing Indebtedness and other obligations of the Company and its Subsidiaries ~~will~~ under the Credit Agreement and related documents or any refinancing or replacement thereof in whole or in part permitted under this Indenture, (iii) Permitted Liens, (iv) Liens securing Acquired Indebtedness; provided that such Liens (x) are not ~~create~~ incurred in connection with, or ~~incur any Lien on~~ in contemplation of, the acquisition of the property or assets acquired and (y) do not extend to or cover any property or assets of the Company or any ~~of its Subsidiaries, whether now owned~~ Subsidiary other than the property or ~~hereafter~~ assets so acquired, ~~in order~~ (v) Liens to secure Capitalized Lease Obligations and certain other Indebtedness that is otherwise permitted under this Indenture; provided that (A) any ~~Indebtedness~~such Lien is created solely for the purpose of securing such other Indebtedness representing, ~~without effectively providing that~~ or incurred to finance, refinance or refund, the ~~Notes shall be equally~~ cost (including sales and ~~ratably secured until such time as such~~ excise taxes, installation and delivery charges and other direct costs of, and other direct expenses paid or charged in connection therewith) of the purchase (whether through stock or asset purchase, merger or otherwise) or construction or improvement of the property subject thereto (whether real or personal, including fixtures and other equipment), (B) the principal amount of the Indebtedness ~~is no longer~~ secured by such ~~Lien~~Lien does not exceed 100% of such costs and (C) such Lien does not extend to or cover any other property other than such item of property and any improvements on such item, ~~except:~~ (avi) Liens existing ~~as of~~ on the Issue ~~Date of the Notes;~~ Date, (bvii) Liens ~~granted after the Issue Date of the Notes created~~ in favor of the ~~Securityholders of the Notes; (c) Liens securing~~ Trustee under this Indenture and any substantially equivalent Lien granted to any trustee or similar institution under any indenture for Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens~~ permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisitionIndenture, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (tviii) any ~~defects of title and any terms~~replacement, ~~conditions, agreements, covenants, exceptions and reservations in deeds~~ extension or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal~~, substitution or replacement (or successive extensions, renewals or replacements)~~, in whole or in part, of any Lien ~~referred to~~ described in this ~~Section 3.1. Notwithstanding anything~~ or the foregoing clauses including in connection with any refinancing of the Indebtedness, in whole or in part, secured by any such Lien; provided that to the ~~contrary in this Section 3.1,~~ extent any such clause limits the ~~Company and any of its Subsidiaries may, without equally and ratably securing~~ amount secured or the ~~Notes, create or incur Liens which would otherwise be~~ assets subject to such Liens, no replacement, extension or renewal shall increase the ~~restrictions set forth in this Section 3.1 if~~amount or the assets subject to such Liens, ~~after giving effect thereto,~~ except to the ~~aggregate principal amount of Indebtedness incurred after~~ extent that the ~~Issue Date of the Notes and secured by~~ Liens ~~not~~ associated with such additional assets are otherwise permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Noteshereunder.

Appears in 1 contract

Samples: Indenture (Bay Area Warehouse Stores Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, create, incur, assume or ~~incur~~ suffer to exist any Lien on any of its assets or properties of any character, or any shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without making effective provision for all of the Notes and all other amounts due under the Indenture to be directly secured equally and ratably with (or, if the obligation or liability to be secured by such Lien is subordinated in right of payment to the Notes, prior to) the obligation or liability secured by such Lien. The foregoing limitation does not apply to: (1) Liens existing on the Closing Date; (2) Liens granted after the Closing Date on any assets or Capital Stock of the Company or its Restricted Subsidiaries created in favor of the Holders; (3) Liens with respect to the assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary or Wholly Owned Regulated Subsidiary to secure Indebtedness owing to the Company or such other Restricted Subsidiary or Regulated Subsidiary; (4) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause (3) of the second paragraph of Section 4.03; provided that such Liens do not extend to or cover any property or assets of the Company or any ~~of its Subsidiaries, whether now owned~~ Restricted Subsidiary or ~~hereafter acquired, in order~~ Regulated Subsidiary other than the property or assets securing the Indebtedness being refinanced; (5) Liens to secure ~~any Indebtedness, without effectively providing~~ Indebtedness Incurred under clause (1) of the second paragraph of Section 4.03; (6) Liens (including extensions and renewals thereof) upon real or personal property acquired after the Closing Date; provided that ~~the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except:~~ (a) ~~Liens existing as~~ any such Lien is created solely for the purpose of securing Indebtedness Incurred, in accordance with Section 4.03, to finance the cost (including the cost of improvement or construction and fees and expenses related to the acquisition) of the ~~Issue Date~~ item of property or assets subject thereto and such Lien is created prior to, at the time of or within twelve months after the later of the ~~Notes; (b) Liens granted after~~ acquisition, the ~~Issue Date~~ completion of construction or the ~~Notes created in favor~~ commencement of ~~the Securityholders~~ full operation of the Notes; (c) Liens securing Indebtedness which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this Section 3.1; (d) Liens created in substitution of or as replacements for any Lien permitted by clause (a)such property, (b) or the principal amount of the Indebtedness secured by such Lien does not exceed 100% of such cost and (c) ~~of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under~~ any such ~~substitute~~ Lien shall not extend to or ~~replacement Lien is substantially similar in nature to the~~ cover any property ~~encumbered by the otherwise permitted Lien which is being replaced~~or assets other than such item of property or assets and any improvements on such item; (e7) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property cash set aside at the time of ~~acquisition thereof~~ the Incurrence of any Indebtedness, or at government securities purchased with such cash, in either case to the ~~time~~ extent that such cash or government securities pre-fund the payment of ~~acquisition~~ interest on such Indebtedness and are held in a collateral or escrow account or similar arrangement to be applied for such purpose; (8) Liens incurred by the Company or ~~any~~ a Restricted Subsidiary for the benefit of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any of its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries a Regulated Subsidiary in the ordinary course of business ~~to secure the purchase price of such property or to secure Indebtedness~~ including Liens incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ~~ordinary course~~ Broker Dealer Regulated Subsidiary’s securities business with respect to obligations that do not exceed $200 million at any one time outstanding and that are not incurred in connection with the borrowing of ~~business~~ money or the obtaining of ~~electricity, gas~~ advances or credit (~~either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and~~ other ~~similar transactions entered into~~ than trade credit in the ordinary course of business;); or (m9) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Permitted Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not exceed the greater of (i) 15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes.

Appears in 1 contract

Samples: Indenture (E Trade Financial Corp)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create or incur any Lien on any property of the Company or~~ permit any of its ~~Subsidiaries~~Subsidiaries to, ~~whether now owned~~ create, incur, assume or ~~hereafter acquired~~suffer to exist any Liens of any kind against or upon any of its property or assets, or any proceeds therefrom, unless (x) in ~~order to secure any~~ the case of Liens securing Subordinated Indebtedness, ~~without effectively providing that~~ the Notes ~~shall be~~ are secured by a Lien on such property, assets or proceeds that is senior in priority to such Liens and (y) in all other cases, the Notes are equally and ratably ~~secured until such time as such Indebtedness is no longer secured by such Lien~~secured, ~~except:~~except for (a) Liens existing as of the Issue ~~Date of the Notes;~~ Date; (b) Liens ~~granted after the Issue Date of the Notes created in favor of the Securityholders of~~ securing the Notes; ; (c) Liens securing Indebtedness ~~which are~~ under Credit Facilities incurred ~~to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred under this~~ in compliance with clauses (c) and (k) of the definition of "Permitted Indebtedness" contained in Section ~~3.1;~~ 1.01; (d) Liens ~~created in substitution of or as replacements for any Lien permitted by clause (a), (b) or (c) of this Section 3.1; provided that based~~ on ~~a good faith determination of~~ the Company~~, the property encumbered under any such substitute or replacement Lien is substantially similar~~ 's headquarters and other business premises securing Indebtedness in ~~nature~~ an aggregate principal amount not to ~~the property encumbered by the otherwise permitted Lien which is being replaced;~~ exceed $10 million; (e) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor of the Company or any Subsidiary; (f) Liens securing Indebtedness which is incurred to refinance Indebtedness which has been secured by a Lien permitted under this Indenture and which has been incurred in accordance with the provisions of ~~its Subsidiaries; (i) purchase money~~ this Indenture; provided, however, that such Liens do not extend to or ~~purchase money security interests upon or in~~ cover any property ~~acquired~~ or ~~held by~~ assets of the Company or any of its Subsidiaries in the ordinary course of business to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations in respect of the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes; (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business of any of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificial), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the ~~Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of~~ Indebtedness ~~incurred after the Issue Date of the Notes~~ so refinanced; and ~~secured by Liens not permitted under this Section 3.1 does not exceed the greater of~~ (ig) ~~15% of Consolidated Net Worth calculated as of the date of the creation or incurrence of such Lien or (ii) 15% of Consolidated Net Worth calculated as of the Issue Date of the Notes~~Permitted Liens.

Appears in 1 contract

Samples: Indenture (Telegroup Inc)

Limitation on Liens. The Company ~~covenants that the Company~~ will not, and ~~its Subsidiaries~~ will not ~~create~~ permit any Restricted Subsidiary to, issue, assume or ~~incur~~ guarantee any Indebtedness for borrowed money secured by any Lien on any property or asset now owned or hereafter acquired by the Company or such Restricted Subsidiary without making effective provision whereby any and all Notes then or thereafter outstanding will be secured by a Lien equally and ratably with (or, if the obligation to be secured by such Lien is subordinated in right of payment to the Notes, prior to) any and all other obligations thereby secured for so long as any such obligations shall be so secured. The foregoing restriction does not, however, apply to: (1) Liens existing on the Issue Date after giving effect to the use of the net proceeds of the sale of the Notes as described in the Offering Circular; (2) Liens securing Hedging Obligations so long as such Hedging Obligations relate to Indebtedness that is, and is permitted to be under this Indenture, secured by a Lien on the same property securing such Hedging Obligations; (3) Liens to secure Purchase Money Indebtedness that is otherwise permitted under this Indenture; provided that (i) any such Lien is created solely for the purpose of securing Indebtedness representing, or incurred to finance, the cost of the acquisition or construction that is the subject of the Purchase Money Indebtedness and (ii) such Lien is limited in the manner described in the definition of Purchase Money Indebtedness; (4) Liens securing Capital Lease Obligations; provided, however, that such Lien does not extend to any property other than that subject to the underlying lease; (5) Liens in favor of landlords contained in leases and subleases of real property granted by the Company or any Restricted Subsidiary or inventory or fixtures located on the leased real property; provided, however, that such Liens are in the ordinary course of business, are on terms customary for leases of such type and do not materially impair the use of the liened property in the operation of the business of the Company or the Restricted Subsidiary; (6) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (7) Xxxxx imposed by law, including, carriers', warehousemen's and mechanics' Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; (8) Liens for taxes, assessments and governmental charges not yet subject to penalties for non-payment or which are being contested in good faith and by appropriate proceedings; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; (9) Liens securing Indebtedness Incurred under Section 5.03(b)(1); (10) Liens securing Indebtedness owed by a Restricted Subsidiary to the Company or to any other Restricted Subsidiary (other than a Securitization Subsidiary); (11) Liens on the property of any Restricted Subsidiary existing at the time such Person becomes a Subsidiary and not incurred as result of (or in connection with or in anticipation of) such Person becoming a Subsidiary; provided, however, that such Liens do not extend to or cover any property or assets of the Company or any of ~~its Subsidiaries, whether now owned or hereafter acquired,~~ the Restricted Subsidiaries other than the property encumbered at the time such Person becomes a Subsidiary and do not secure Indebtedness with a principal amount in order to secure any Indebtedness, without effectively providing that the Notes shall be equally and ratably secured until such time as such Indebtedness is no longer secured by such Lien, except: (a) Liens existing as excess of the ~~Issue Date of the Notes~~principal amount outstanding at such time; (b12) Liens ~~granted after the Issue Date of~~ securing the Notes ~~created in favor of~~ and the ~~Securityholders of the Notes~~Exchange Securities; (c13) Liens to secure taxes not yet due or which are being contested in good faith by the Company or a Restricted Subsidiary; (14) Liens securing Refinancing Indebtedness incurred to refinance Indebtedness that was previously so secured; provided that such Lien extends to or covers only the same property that secures the Indebtedness being refinanced; (15) Liens (excluding in all cases Liens securing Limited Originator Recourse obligations) on (i) accounts receivable and related assets transferred to, or on accounts receivable and related assets of, a Securitization Subsidiary in connection with a Qualified Securitization Transaction and (ii) licensing royalties and related assets transferred to, or on licensing royalties and related assets of, a Securitization Subsidiary in connection with a Qualified Securitization Transaction in an aggregate amount of up to 15% of the total revenues from royalties or similar licensing payments of the Company and its Restricted Subsidiaries; (16) Liens securing Indebtedness ~~which are incurred to extend, renew or refinance Indebtedness which is secured by Liens permitted to be incurred~~ Incurred under ~~this~~ Section ~~3.1;~~5.03(b)(14); or (d17) Liens ~~created in substitution~~ (exclusive of ~~or as replacements for~~ any Lien of any type otherwise permitted ~~by clause~~ under clauses (~~a),~~ 1) through (~~b) or (c~~16) of this Section 3.1; provided that based on a good faith determination of the Company, the property encumbered under any such substitute or replacement Lien is substantially similar in nature to the property encumbered by the otherwise permitted Lien which is being replaced; (e5.09) Liens on any assets, created solely to secure obligations incurred to finance the refurbishment, improvement or construction of such asset, which obligations are incurred no later than 12 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; (i) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of any property, including Capital Lease transactions in connection with any such acquisition, and (ii) Liens existing on any property at the time of acquisition thereof or at the time of acquisition by the Company or any of its Subsidiaries of any Person then owning such property whether or not such existing Liens were given to secure the payment of the purchase price of the property to which they attach; provided that with respect to clause (i), the Liens shall be given within 12 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon and any proceeds thereof; (g) pre-existing Liens on assets acquired after the Issue Date of the Notes; (h) Liens in favor securing Indebtedness for borrowed money of the Company or any Restricted Subsidiary in an aggregate principal amount which, together with the aggregate amount of ~~its Subsidiaries; (i) purchase money Liens or purchase money security interests upon or in any property acquired or held by the Company or any of its Subsidiaries in the ordinary course of business~~ Attributable Indebtedness deemed to secure the purchase price of such property or to secure Indebtedness incurred solely for the purpose of financing the acquisition of such property; (j) Liens on any property in favor of the United States of America or any State thereof or any political subdivision thereof to secure progress or other payments or to secure Indebtedness incurred for the purpose of financing the cost of acquiring, constructing or improving such property; (k) the pledge or assignment in the ordinary course of business of electricity, gas (either natural or artificial) or steam, accounts receivable or customers’ installment paper; (l) Liens securing xxxxxx, swaps, derivatives and other similar transactions entered into in the ordinary course of business; (m) Liens incurred in connection with an acquisition of assets or a project financed on a non-recourse basis; (n) Liens for taxes, assessments or governmental charges for the then current year and taxes, assessments or governmental charges not then delinquent; (o) Liens for workers’ compensation awards and similar obligations not then delinquent; (p) mechanics’, laborers’, materialmen’s and similar Liens not then delinquent; (q) judgment Liens; (r) easements or reservations be outstanding in respect of ~~the Company’s property or property of a Subsidiary for the purpose of roads, pipelines, utility transmission and distribution lines or other rights-of-way and similar purposes;~~ all Sale/Leaseback Transactions entered into pursuant to Section 5.10(a) (s) zoning ordinances, regulations, reservations, restrictions, covenants, party wall agreements, conditions of record and other encumbrances, other than to secure the payment of money, none of which, in the opinion of counsel, are such as to interfere with the proper operation and development of the affected property for its intended use in the Company’s business or the business exclusive of any such Sale/Leaseback Transactions otherwise permitted under clauses (1) through (16) of its Subsidiaries; (t) any defects of title and any terms, conditions, agreements, covenants, exceptions and reservations in deeds or other instruments under which the Company or any of its Subsidiaries has acquired or may in the future acquire any property, none of which, in the opinion of counsel, materially adversely affects the operation of the Company’s properties and those of its Subsidiaries, taken as a whole; (u) rights reserved to or vested in others to take or receive any part of the electricity, gas (either natural or artificialthis Section 5.09), steam or any by-products generated or produced by or from any of the Company’s or any of its Subsidiaries’ properties or with respect to any other rights concerning electricity, gas (either natural or artificial) or steam supply, transportation or storage which are in use in the ordinary course of the electricity, gas (either natural or artificial) or steam business; (v) Liens created or assumed by the Company or any of its Subsidiaries in connection with the issuance of tax-exempt state and local bonds for purposes of financing, in whole or in part, the acquisition or construction of property to be used by the Company or any of its Subsidiaries, provided the Liens are limited to the property financed and the related real estate; (w) Liens incurred in the creation or existence of leases made, or existing on property acquired, in the ordinary course of business; and (x) any extension, renewal, substitution or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in this Section 3.1. Notwithstanding anything to the contrary in this Section 3.1, the Company and any of its Subsidiaries may, without equally and ratably securing the Notes, create or incur Liens which would otherwise be subject to the restrictions set forth in this Section 3.1 if, after giving effect thereto, the aggregate principal amount of Indebtedness incurred after the Issue Date of the Notes and secured by Liens not permitted under this Section 3.1 does not at the time such Indebtedness is incurred exceed the greater of ~~(i)~~ $40.0 million and 15% of Consolidated Net ~~Worth calculated~~ Tangible Assets, as determined based on the consolidated balance sheet of the Company as of the ~~date~~ end of the ~~creation or incurrence~~ most recent fiscal quarter for which financial statements are available. Any Lien created for the benefit of the Holders pursuant to the preceding sentence shall provide by its terms that such Lien ~~or (ii) 15% of Consolidated Net Worth calculated as~~ shall be automatically and unconditionally released and discharged upon the release and discharge of the ~~Issue Date of the Notes~~initial Lien.

Appears in 1 contract

Samples: Indenture (Phillips Van Heusen Corp /De/)

Common use of Limitation on Liens Clause in Contracts