Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except: (a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13; (b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment); (c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13; (d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property; (e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment; (f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that (i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon), (ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and (iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and (g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 2 contracts
Samples: Note Agreement (Simpson Industries Inc), Note Agreement (Simpson Industries Inc)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Indebtedness of the First Amendment and securing the Debt of a Restricted Subsidiary to the Company and its or to a Wholly-Owned Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Lien created Liens existing on the Execution Date and reflected in Schedule 10.4;
(g) Liens incurred after the Execution Date (including Liens incurred in connection with Capitalized Leases and Off-Balance Sheet Obligations) given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Xxxxx would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) any interest or title of a lessor under any operating lease entered into by the Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the Company or any Restricted Subsidiary, as lessee or consignee, in the ordinary course of business;
(k) Liens in favor of banking institutions arising by operation of law encumbering deposits (including the right of set-off) held by such Lien shall at no time exceed an amount equal banking institutions incurred in the ordinary course of business and that are within the general parameters customary in the banking industry;
(l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the lesser Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(Am) possessory rights of customers of the cost to Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Company or any Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Restricted Subsidiary of to facilitate the Property (purchase, shipment or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) storage of such Property (or improvement thereon) at the time of such acquisition or construction, andInventory;
(iiio) any such Lien shall be created contemporaneously Liens arising in connection with trade letters of credit issued to secure the acquisition or construction purchase of such Property; and
(g) Inventory in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the applicable limitations set forth in Section 4.2 10.2 and 4.3Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. The Company Obligors will not, and will not permit any of its their Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company any Obligor or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless the Obligors make, or cause to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless if the judgment it secures shall not, within 30 days after the entry thereof, either (i) have been discharged discharged, bonded or execution thereof stayed pending appeal, appeal within 60 days after the entry thereof or shall not have been discharged within 30 60 days after the expiration of any such stay or (or such lesser period of time as applicable law allows a judgment creditor ii) be covered by insurance and the insurer has acknowledged in writing that it is obligated to levy on pay such judgment);
(ci) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar Liens for sums not yet due and payable), (ii) Liens, in each casedeposits and pledges to secure the performance of bids, tenders, leases, or trade contracts, or, (iii) Liens to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation) and under liability insurance, (iv) Liens to secure surety or appeal bonds or performance bonds, (v) other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of moneymoney or (vi) Liens securing letters of credit that are issued to secure any of the foregoing obligations described in this Section 10.4(c);
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertyan Obligor or any of its Restricted Subsidiaries, on Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Debt or other obligations of the First Amendment and securing the Debt of the Company and its a Restricted Subsidiaries referred Subsidiary to in Exhibit B an Obligor or to the First Amendmenta Restricted Subsidiary;
(f) any Lien created Liens existing as of the date of Closing and reflected in Schedule 10.4;
(g) Liens incurred after the date of Closing given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable but including inventory) useful and intended to be used (or sold as inventory) in carrying on the business of an Obligor or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved and the proceeds thereof; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or any not assumed by an Obligor or a Restricted Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition, construction or improvement thereon, acquired or constructed (z) the Fair Market Value of such property (as determined in good faith by one or more officers of an Obligor to whom authority to enter into the transaction has been delegated by the Company board of directors of such Obligor); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into an Obligor or a Restricted Subsidiary after or its becoming a Restricted Subsidiary, or any Lien existing on any property acquired by an Obligor or any Restricted Subsidiary at the date of time such property is so acquired (whether or not the First AmendmentDebt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Restricted Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(i) any extensions, and
renewals or replacements of any Lien permitted by the preceding subparagraphs (e), (f) and (g) of this Section 10.4, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) any at such Lien time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be created contemporaneously with the acquisition or construction of such Propertycontinuing; and
(gj) in addition to the Liens described above, any other Liens securing Debt or other obligations not permitted by the preceding clauses (a) through (f)above, inclusive, of this Section 4.4, including Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company an Obligor or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by does not exceed the applicable limitations set forth in Section 4.2 and 4.310.3.
Appears in 2 contracts
Samples: Note Purchase Agreement (Family Dollar Stores Inc), Note Purchase Agreement (Family Dollar Stores Inc)
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (includingcollectively, without limitation, "Permitted Liens"):
(a) any document or instrument in respect of goods or accounts receivableLien (other than a Lien on property constituting Collateral) existing on the property of the Company or any Subsidiary on the Closing Date and set forth in Schedule 8.01 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.07;
(bd) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) other similar non-consensual statutory Liens (including statutory liens in favor of landlords mineral interest owners, securing only amounts due for the purchase price, state royalty and Liens taxes in respect of carriers, warehousemen, mechanics, materialmen and other similar Liens, product severed from a production unit in each case, incurred New Mexico in which such interest owner owns an interest) arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISAERISA and other than Liens on the Collateral) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) easements, rights-of-way, restrictions, defects or retirement benefits, or (ii) other exceptions to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts title and other similar obligationsencumbrances with respect to real property incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fg) Subject to the provisions of the Deposit Account Control Agreements, Liens (other than Liens on the Collateral) arising solely by virtue of any Lien created statutory or common law provision relating to secure banker's liens, 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 Company, (ii) the Company (or applicable Subsidiary) maintains (subject to such right of set off) dominion and control over such account(s), and (iii) such deposit account is not intended by the Company, any Guarantor or any Subsidiary to provide cash collateral to the depository institution;
(h) Liens (other than Liens on Collateral) securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring property after the date hereof; provided that (i) such Lien has attached prior to acquisition of such property or attaches to such property concurrently with or within 20 days after the acquisition thereof, (ii) such Lien attaches solely to the property financed by such Indebtedness, (iii) the principal amount of the Indebtedness secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all such purchase pricemoney security interests shall not exceed $20,000,000 in the aggregate at any time outstanding; and
(i) Liens (including Liens on Collateral to the extent provided herein) on crude oil supplied by Statoil pursuant to the Statoil Purchase Agreement, or to secure Debt securing Indebtedness incurred or assumed to pay for the purpose of financing all or any part of the purchase price or cost of constructionacquiring such crude oil; provided, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
that (i) any such Lien shall extend has attached prior to acquisition of such crude oil or attaches to such crude oil concurrently with or within 20 days after the acquisition thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved crude oil financed by such acquired or constructed Property Indebtedness, (or improvement thereon),
(iiiii) the principal amount of the Debt Indebtedness secured thereby does not exceed 100% of the cost of such crude oil, (iv) the principal amount of the Indebtedness secured by any and all such Lien purchase money security interests in favor of Statoil shall not be increased in excess of the amount contemplated by the Statoil Purchase Agreement as in effect on the Closing Date, and (v) such Liens in favor of Statoil shall be subject to the terms of the Statoil Intercreditor Agreement;
(j) Liens on cash and cash equivalents not exceeding at no any time exceed in the aggregate an amount equal to the lesser $5,000,000, securing obligations of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyits Subsidiaries pursuant to Commodity Swaps; and
(gk) Any Liens (other than Liens on Collateral) not otherwise described in addition to the Liens permitted by the preceding clauses (aSubsection 8.01(a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Companyj) securing Priority Debt of the Company or any Restricted Subsidiaryabove, provided that the Indebtedness and other obligations secured by such Priority Debt Liens shall be permitted by not at any time exceed $5,000,000 in the applicable limitations set forth in Section 4.2 and 4.3aggregate at any time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Giant Industries Inc), Credit Agreement (Giant Industries Inc)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, profits except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment Liens in connection with attachments or judgments (including judgment Lienor appeal bonds), unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums more than 90 days delinquent or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions (including zoning restrictions), minor defects or irregularities in title and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Indebtedness or other obligations of the First Amendment and securing the Debt of a Subsidiary to the Company and its Restricted Subsidiaries referred or to in Exhibit B to the First Amendmenta Subsidiary Guarantor;
(f) any Lien created interest of title of a lessor under, and Liens arising from uniform commercial code financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;
(g) Liens existing as of the Closing Date and reflected in Schedule 10.4;
(h) Liens incurred after the Closing Date given to secure all or any part the payment of the purchase priceprice incurred (or Indebtedness incurred to fund such payment) in connection with the acquisition, construction, repair, development, or to secure Debt incurred or assumed to pay all or any part improvement of the purchase price or cost of construction, of Property property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by ) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary after Subsidiary, including Liens existing on such property at the date time of the First Amendmentacquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction, repair or development, or improvement, provided that
that (i) any such the Lien shall extend attach solely to the item property acquired, purchased, constructed, repaired, developed, or items of such Property (or improvement thereon) so acquired or constructed improved, and, if required by the terms of the instrument originally creating such Lien, the proceeds thereof, general intangibles related thereto, and other Property property which is an improvement to or is acquired for specific use in connection with such property; (ii) at the time of acquisition, construction, repair, development, or improvement thereonof such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction, repair, development or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition, construction, repair, development, or improvement plus related financing costs or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(i) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary (other than pursuant to Section 9.6), or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that (i) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, the proceeds thereof, general intangibles related thereto, and other property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(j) Liens securing Indebtedness and other obligations on property or assets of the Company or its Subsidiaries which Liens were given after the Closing Date, provided the Company makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property;
(k) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (g), (h), (i) and (j) of this Section 10.4, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(l) Liens on equity interests of a joint venture owned by the Company or any such Lien shall be created contemporaneously with Subsidiary to the acquisition or construction extent securing Indebtedness of such Propertyjoint venture and any Guaranty by the Company or any Subsidiary of such Indebtedness;
(m) rights of first refusal, purchase options and similar rights granted pursuant to joint venture agreements, stockholder agreements, organic documents and similar documents and agreements;
(n) normal and customary rights of setoff upon deposits of cash in favor of banks or other depository institutions; and
(go) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by Section 10.3, and, provided further that, no such Liens permitted by this Section 10.4(o) may secure any obligations under the applicable limitations set forth in Section 4.2 and 4.3Bank Credit Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (International Speedway Corp), Note Purchase Agreement (International Speedway Corp)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords', carriers', warehousemen's, mechanics', materialmen materialmen's and other similar LiensLiens arising in the ordinary course of business in respect of sums which are not overdue for a period of more than 30 days) and Liens to secure, in each caseor to obtain letters of credit to secure, the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or of credit or the payment payments of the deferred purchase price of Propertyproperty;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries, provided that such Liens do not, in the aggregate, Materially detract from the value of such property;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Restricted Subsidiary owing to the Company and its or to a Wholly-Owned Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Lien created Liens existing as of the date of Closing and reflected in Schedule 10.5;
(g) Liens incidental to minor survey exceptions and similar Liens, provided that such Liens do not, in the aggregate, Materially detract from the value of such property;
(h) Liens incurred after the date of Closing given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price of property, or the cost of construction, construction or improvement of Property such property (other than accounts receivable or inventory)) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or created contemporaneously therewith, or any Liens incurred within 270 days of such acquisition and/or the completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement thereonof such property, acquired the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or constructed not assumed by the Company or a Restricted Subsidiary, shall not exceed the lesser of (y) the cost to the Company or such Restricted Subsidiary after of such acquisition, construction or improvement or (z) the date Fair Market Value of such property (as determined in good faith by one or more officers of the First AmendmentCompany to whom authority to enter into the transaction has been delegated by the board of directors of the Company); and (iii) at the time of such incurrence and after giving effect thereto, provided thatno Default or Event of Default would exist;
(i) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Restricted Subsidiary or its becoming a Restricted Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person's becoming a Restricted Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(j) any extensions, and
renewals, refinancings, refundings or replacements of any Lien permitted by the preceding subparagraphs (e), (f), (h) and (i) of this Section 10.5, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) any at such Lien time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be created contemporaneously with the acquisition or construction of such Propertycontinuing; and
(gk) in addition to the Liens permitted by the preceding clauses subparagraphs (a) through (fj), inclusive, of this Section 4.410.5, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority the aggregate principal amount of Debt secured by Liens pursuant to this Section 10.5(k) shall be permitted by the applicable limitations set forth in pursuant to Section 4.2 and 4.310.3.
Appears in 2 contracts
Samples: Note Purchase Agreement (Proquest Co), Note Purchase Agreement (Proquest Co)
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with the securitization of Receivables; provided that (i) the aggregate net proceeds of any such securitization transaction shall not exceed $750,000,000 and (ii) any such securitization transaction shall be a Permitted Receivables Securitization;
(g) any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted Subsidiary after the date of hereof prior to the First Amendment, time such Person becomes a Subsidiary; provided that
that (i) any such Lien shall extend solely to the item is not created in contemplation of or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired acquisition or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
Person becoming a Subsidiary, as the case may be, (ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal not apply to the lesser of (A) the cost to the Company any other property or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt assets of the Company or any Restricted Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i) such Priority Debt security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall be not apply to any other property or assets of the Company or any Subsidiary; and
(i) Liens (not otherwise permitted by hereunder) which secure obligations not exceeding (as to the applicable limitations set forth in Section 4.2 Company and 4.3all Domestic Subsidiaries) a Dollar Equivalent Amount equal to $75,000,000 at any time outstanding.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Arrow Electronics Inc), Credit Agreement (Arrow Electronics Inc)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Indebtedness of the First Amendment and securing the Debt of a Restricted Subsidiary to the Company and its or to a Wholly-Owned Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Lien created Liens existing on the Execution Date and reflected in Schedule 10.4;
(g) Liens incurred after the Execution Date (including Liens incurred in connection with Capitalized Leases and Off-Balance Sheet Obligations) given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) any interest or title of a lessor under any operating lease entered into by the Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the Company or any Restricted Subsidiary, as lessee or consignee, in the ordinary course of business;
(k) Liens in favor of banking institutions arising by operation of law encumbering deposits (including the right of set-off) held by such Lien shall at no time exceed an amount equal banking institutions incurred in the ordinary course of business and that are within the general parameters customary in the banking industry;
(l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the lesser Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(Am) possessory rights of customers of the cost to Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Company or any Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Restricted Subsidiary of to facilitate the Property (purchase, shipment or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) storage of such Property (or improvement thereon) at the time of such acquisition or construction, andInventory;
(iiio) any such Lien shall be created contemporaneously Liens arising in connection with trade letters of credit issued to secure the acquisition or construction purchase of such Property; and
(g) Inventory in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the applicable limitations set forth in Section 4.2 10.2 and 4.3Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. The Company will notnot pledge or otherwise subject to any lien, and will not permit any of its Restricted Subsidiaries property or assets unless the Securities are secured by such pledge or lien equally and ratably with all other obligations secured thereby so long as such other obligations shall be so secured; provided that such covenant will not apply to liens securing obligations which do not in the aggregate at any one time outstanding exceed 10% of Consolidated Net Tangible Assets of the Company and also will not apply to:
(1) Any lien or charge on any property, tangible or intangible, real or personal, existing at the time of acquisition or construction of such property (including acquisition through merger or consolidation) or given to secure the payment of all or any part of the purchase or construction price thereof or to secure any indebtedness incurred prior to, at the time of, or within one year after, the acquisition or completion of construction thereof for the purpose of financing all or any part of the purchase or construction price thereof;
(2) Any liens securing the performance of any contract or undertaking of the Company not directly or indirectly createin connection with the borrowing of Money, incur, assume obtaining of advances or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable credit or the payment securing of which is not at the time required by Section 4.13;
(b) any attachment or judgment Liendebts, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords if made and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred continuing in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13business;
(d3) Liens Any lien to secure nonrecourse obligations in connection with the Company's engaging in leveraged or single investor lease transactions;
(4) Any lien in favor of the United States or any state thereof or the District of Columbia, or any agency, department or other than instrumentality thereof, to secure progress, advance, or other payments pursuant to any Lien imposed by ERISAcontract or provision of any statute;
(5) incurred Mechanics', materialmen's, carriers', or deposits made other like liens arising in the ordinary course of business (iincluding construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(6) Any lien arising by reason of deposits with, or the giving of any form of security to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business, or the exercise of any privilege, franchise or license;
(7) Any liens for taxes, assessments or governmental charges or levies not yet delinquent, or liens for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith;
(8) Liens (including judgment liens) arising in connection with workers' compensationlegal proceedings so long as such proceedings are being contested in good faith and in the case of judgment liens, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertyexecution thereof is stayed;
(e9) Liens existing on the date of the First Amendment and securing the Debt relating to secured indebtedness of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase priceoutstanding on June 30, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property1997; and
(g10) Any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in addition part, of any lien referred to in the Liens permitted by the preceding foregoing clauses (a1) through to (f), 9) inclusive, of this Section 4.41007, Liens on Property (other than accounts receivable or inventory provided, however, that the amount of any Company) securing Priority Debt and all obligations and indebtedness secured thereby shall not exceed the amount thereof so secured immediately prior to the time of such extension, renewal or replacement and that such extension, renewal or replacement shall be limited to all or a part of the Company property which secured the charge or any Restricted Subsidiarylien so extended, provided that renewed or replaced (plus improvements on such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3property).
Appears in 2 contracts
Samples: Indenture (Nationwide Health Properties Inc), Indenture (Nationwide Health Properties Inc)
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows a judgment creditor to levy on such judgment)more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(e) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums which, in the aggregate, are not yet due substantial in amount and payable which do not in any case materially detract from the value of the property subject thereto or materially interfere with the payment ordinary conduct of which is not at the time required by Section 4.13business of the Company or any of its Subsidiaries;
(df) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing existence on the date of the First Amendment first issuance of Securities of such series issued pursuant to this Indenture; provided that no such Lien is spread to cover any additional property after such date and that the amount of Debt secured thereby is not increased;
(g) Liens securing the Debt of the Company and its Restricted Subsidiaries referred incurred to in Exhibit B to finance the First Amendmentacquisition of fixed or capital assets; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any property other than the property financed by such Debt and (iii) the amount of Debt secured thereby is not increased;
(fh) any Lien created to secure all Liens on the property or any part assets of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted corporation which becomes a Subsidiary after the date hereof; provided that (i) such Liens existed at the time such corporation became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to cover any property or assets or such corporation after the time such corporation becomes a Subsidiary, and (iii) the amount of the First Amendment, provided thatDebt secured thereby is not increased;
(i) Liens pursuant to any such Lien shall extend solely Receivables Transaction in an aggregate principal amount not to exceeding 20% of Consolidated Tangible Assets; and
(j) Liens (not otherwise permitted hereunder) (i) which secure obligations not exceeding (as to the item Company and all Subsidiaries) the greater of (x) $250,000,000 or items (y) 20% of such Property (Consolidated Tangible Assets, in each case in aggregate amount at any time outstanding or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) with respect to which the principal amount Company effectively provides that the Securities Outstanding hereunder are secured equally and ratably with (or, at the option of the Company, prior to) the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Lien.
Appears in 2 contracts
Samples: Indenture (Boston Scientific Corp), Indenture Agreement (American Medical Systems Europe B.V.)
Limitation on Liens. The Company Issuer will not, and will not permit while any of its Restricted Subsidiaries tothe Notes remain Outstanding, directly or indirectly create, incuror suffer to be created or to exist, assume any mortgage, lien, pledge, security interest or permit other encumbrance of any kind upon any property of any character of the Issuer whether now owned or hereafter acquired or upon any of the income or profits therefrom unless it shall make effective provision whereby the Notes then Outstanding shall be secured by such mortgage, lien, pledge, security interest or other encumbrance equally and ratably with any and all obligations and indebtedness thereby secured so long as any such obligations and indebtedness shall be so secured; provided, however, that nothing in this Section 9.08 shall be construed to exist prevent the Issuer from creating, or from suffering to be created or to exist, any mortgages, liens, pledges, security interests or other encumbrances, or any agreements, with respect to:
(1) Purchase money mortgages, or other purchase money liens, pledges or encumbrances of any kind upon property hereafter acquired by the happening Issuer, or mortgages, liens, pledges, security interests or other encumbrances of a contingency any kind existing on such property at the time of the acquisition thereof, or otherwise) any Lien on conditional sales agreements or other title retention agreements with respect to any Property property hereafter acquired; provided, however, that no such mortgage, lien, pledge, security interest or asset (includingother encumbrance, without limitationand no such agreement, shall extend to or cover any document or instrument in respect of goods or accounts receivable) other property of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:Issuer;
(a2) Liens, pledges, security interests, mortgages or other encumbrances of any kind on the shares of stock of a corporation which, when such liens, pledges, security interests, mortgages or other encumbrances arise, concurrently becomes a Subsidiary or liens, pledges, security interests, mortgages or other encumbrances on all or substantially all of the assets of a corporation arising in connection with the purchase or acquisition thereof by the Issuer, provided that such lien or other security interest shall not attach to any other assets of the Issuer;
(3) Liens for taxes, assessments or other assessments, governmental charges which are not yet due or levies; pledges or deposits to secure obligations under worker’s compensation or unemployment insurance laws or similar legislation; pledges or deposits to secure performance in connection with bids, tenders, contracts, performance bonds and payable or other similar arrangements (other than contracts for the payment of money) or leases to which the Issuer is not at a party; deposits to secure public or statutory obligations of the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemenIssuer; materialmen’s, mechanics’, materialmen and carriers’, workers’, repairmen’s or other similar Liens, in each case, incurred like liens in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred business, or deposits made to obtain the release of such liens; deposits to secure surety and appeal bonds to which the Issuer is a party, other pledges or deposits for similar purposes in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security business; liens created by or retirement benefits, resulting from any litigation or (ii) to secure (or to obtain letters of credit that secure) legal proceeding which at the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which time is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property currently being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined contested in good faith by appropriate proceedings; leases made, or existing on property acquired, in the board ordinary course of directors business; landlord’s liens under leases to which the Issuer is a party; zoning restrictions, easements, licenses, restrictions on the use of real property or minor irregularities in title thereto, which do not materially impair the use of such property in the operation of the Company) business of the Issuer or the value of such Property (or improvement thereon) at property for the time purpose of such acquisition business; the lien of the trustee under any indenture (including this Indenture), liens encumbering property or constructionassets under construction arising from progress or partial payments; liens arising from the filing of Uniform Commercial Code financing statements regarding leases or consignments; any interest or title of a lessor in the property subject to any capitalized lease or operating lease; liens arising out of consignment or similar arrangements entered into in the ordinary course of business; and liens existing on March 31, and1994;
(iii4) any such Lien shall be created contemporaneously with Indebtedness assumed by the acquisition or construction Issuer of such Propertythe character specified in the first proviso of Section 9.09 hereof; andor
(g5) in addition to the Liens The replacement, extension or renewal of any mortgage, lien, pledge, security interest or other encumbrance, or of any agreement, permitted by the preceding foregoing clauses (a) through (f1), inclusive(2), of this Section 4.4(3), Liens on Property (other than accounts receivable 4), or inventory of any Companythe replacement, extension or renewal (without increase) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3indebtedness secured thereby.
Appears in 2 contracts
Limitation on Liens. The Company will notnot create or incur or suffer to be incurred or to exist, and will not permit any mortgage, pledge, security interest, encumbrance, lien or charge of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (any kind upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted SubsidiaryMortgaged Property, whether now owned or held or hereafter acquired, or upon any income or profits proceeds therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept the following:
(a) Liens liens for taxes, property taxes and assessments or other governmental charges which are not yet due or levies and payable liens securing claims or the demands of mechanics and materialmen, provided that payment of which thereof is not at the time required overdue or, if overdue, is being contested in good faith by Section 4.13appropriate actions or proceedings;
(b) liens of or resulting from any attachment judgment or judgment Lienaward, unless the judgment it secures shall not, within 30 days after time for the entry thereof, have been discharged appeal or execution thereof stayed pending appeal, or petition for rehearing of which shall not have expired, or in respect of which the Company shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)secured;
(c) liens, charges, encumbrances and priority claims incidental to the conduct of business or the ownership of properties and assets (including warehousemen’s and attorneys’ liens and statutory Liens landlords’ liens) and deposits, pledges or liens to secure payment of landlords and Liens premiums on insurance purchased in the usual course of carriersbusiness or in connection with self-insurance or in connection with workmen’s compensation, warehousemenunemployment insurance or social security legislation, mechanicsor to secure the performance of bids, materialmen and tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other similar Liens, in each case, liens of like general nature incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, provided in each case, the obtaining obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings;
(d) minor survey exceptions or minor encumbrances, easements or reservations of, or rights of advances others for rights-of-way, utilities and other similar purposes, or credit zoning or other restrictions as to the payment use of real properties, which encumbrances, easements, reservations, rights and restrictions do not in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the deferred purchase price business of Propertythe Company;
(e) Liens existing on the date lien of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentthis Mortgage;
(f) any Lien created to secure all or any part the lien of the purchase priceLease, or subject to secure Debt incurred or assumed the SNDA Agreement;
(g) the lien of any permitted sublease from the Tenant, as sublessor, to pay all or any part Person, as sublessee; provided that the lien thereof shall be subject to the terms of the purchase price or cost Lease and the SNDA Agreement;
(h) easements, rights of constructionway, reservations, restrictive agreements, servitudes and rights of others against the Mortgaged Property (and any other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by matters which are listed on Schedule B to the Company or a Restricted Subsidiary after ALTA Title Insurance Policy delivered to the date Mortgagee following the issuance and delivery of the First Amendment, provided thatNote; and
(i) any such Lien shall extend solely utility easements, rights of way or reservations granted or to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement be granted to or is acquired for specific use service providers in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount development of the Debt secured by any Mortgaged Property, which such Lien shall at no time exceed an amount equal to utility easements, rights of way or reservations do not in the lesser aggregate detract from or impair the value of (A) the cost to the Company or such Restricted Subsidiary use of the Mortgaged Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined have been approved in good faith writing by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Tenant.
Appears in 2 contracts
Samples: Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing Statement (Blue Ridge Real Estate Co), Mortgage Agreement (Blue Ridge Real Estate Co)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing on the date of the First Amendment this Agreement and securing the Debt of the Company and its Restricted Subsidiaries referred to reflected in Exhibit B to the First AmendmentSchedule 10.4;
(fg) any Lien created Liens incurred after the date of this Agreement (including Liens incurred in connection with Capitalized Leases and Off-Balance Sheet Obligations) given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Xxxxx would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) any interest or title of a lessor under any operating lease entered into by the Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the Company or any Restricted Subsidiary, as lessee or consignee, in the ordinary course of business;
(k) Liens in favor of banking institutions arising by operation of law encumbering deposits (including the right of set-off) held by such Lien shall at no time exceed an amount equal banking institutions incurred in the ordinary course of business and that are within the general parameters customary in the banking industry;
(l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the lesser Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(Am) possessory rights of customers of the cost to Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Company or any Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Restricted Subsidiary of to facilitate the Property (purchase, shipment or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) storage of such Property (or improvement thereon) at the time of such acquisition or construction, andInventory;
(iiio) any such Lien shall be created contemporaneously Liens arising in connection with trade letters of credit issued to secure the acquisition or construction purchase of such Property; and
(g) Inventory in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(r) Liens created pursuant to disposals of receivable pursuant to customary supply chain financing arrangements initiated and provided by customers of the Company and its Subsidiaries not prohibited by Section 10.5; and
(s) other Liens not otherwise permitted by paragraphs (a) through (r), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the applicable limitations set forth in Section 4.2 10.2 and 4.3Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (s) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 2 contracts
Samples: Note Purchase Agreement (Mettler Toledo International Inc/), Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. The Company will shall not, and will shall not suffer or ------------------- permit any of its Restricted Subsidiaries Material Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens"): ---------------
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Closing Date and set forth in Schedule 7.01 either (i) securing Indebtedness ------------- outstanding on such Restricted Subsidiary, whether now owned date or held or hereafter acquired, or any income or profits therefrom, or assign or (ii) which does not otherwise convey any right to receive income or profits, except:secure Indebtedness;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, levies, imposts, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.07, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens on the property of the Company or retirement benefits, or its Subsidiary securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business, provided all such Liens in the aggregate would not (other than Capitalized Leases)even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, performance bondsprovided that the enforcement of such Liens is effectively stayed and all such liens in the aggregate at any time outstanding for the Company and its Subsidiaries do not exceed $20,000,000;
(h) easements, purchaserights-of-way, construction zoning or sales contracts use restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fi) Liens on assets acquired by the Company or any Lien Subsidiary or on any assets of Persons which become Subsidiaries, in each case, which assets or Persons are acquired after the date of this Agreement, provided, however, that -------- ------- such Liens existed at the time such assets were acquired by the Company or any Subsidiary or such Persons became Subsidiaries and were not created to secure in anticipation thereof;
(j) purchase money security interests on any property acquired, constructed or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any -------- ---- such Lien shall extend attaches to such property concurrently with or within 30 days after the acquisition or construction thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all such purchase money security interests shall not at any time exceed $10,000,000;
(k) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(l) 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 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 Company in excess of those set forth by regulations promulgated by the FRB, and (ii) such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(m) Liens consisting of pledges of cash collateral or government securities to secure on a xxxx-to-market basis Permitted Swap Obligations only, provided that (i) the counterparty to any Swap Contract relating to any such Permitted Swap Obligation is under a similar requirement to deliver similar collateral from time to time to the Company or the Subsidiary party thereto on a xxxx-to-market basis, and (ii) the aggregate value of such collateral so pledged by the Company and the Subsidiaries together in favor of any counterparty does not at any time exceed $10,000,000;
(n) Liens securing Refinancing Indebtedness (as defined in subsection 7.05(f)) which was originally secured by a Lien permitted by this Section 7.01; provided that such Lien does not apply to any other property or assets of the -------- Company or any Subsidiary other than the proceeds of the property or assets subject to such Lien;
(o) Liens pursuant to Permitted Receivables Purchase Facilities permitted by the terms hereof;
(p) other non-consensual Liens arising in the ordinary course of business the existence or enforcement of which would not result in a Material Adverse Effect;
(q) other Liens securing Indebtedness and obligations in an aggregate principal amount at any time outstanding not exceeding $5,000,000; provided that -------- any such Lien shall at no time exceed an amount equal not encumber cash (other than to the lesser of (A) the cost to the Company or extent such Restricted Subsidiary cash constitutes proceeds of the Property (property subject to any such Lien), inventory or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, andaccounts receivable;
(iiir) any such Lien shall be created contemporaneously with the acquisition or construction Liens on Margin Stock of such PropertyInnoveda; and
(gs) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory Margin Stock of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3IKOS.
Appears in 1 contract
Limitation on Liens. The Company Neither Borrower will notincur, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency exist, nor will either Borrower permit any Subsidiary to incur, create, assume or otherwise) permit to exist, any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, except (a) Liens in favor of (i) Agent as agent for US Lenders or, with respect to Rate Management Transactions or Secured Cash Management Agreements between any Borrower and any US Lender or its Affiliates, the US Lenders or their Affiliates, or (ii) the Cdn. Lender (granted by Cdn. Borrower and its Canadian Subsidiaries), (b) purchase money Liens and Liens related to Capitalized Lease Obligations securing Debt permitted by Section 12.1(b), which Liens cover only the assets financed with the Debt permitted by Section 12.1(b), (c) encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of either Borrower or any income Subsidiary to use such assets in its business, and none of which is violated in any material aspect by existing or profits therefromproposed structures or land use, or assign or otherwise convey any right to receive income or profits, except:
(ad) Liens for taxes, assessments assessments, or other governmental charges which are not yet due delinquent or which are being contested in good faith and payable or the payment of for which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, adequate reserves have been discharged or execution thereof stayed pending appealestablished, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(ce) statutory Liens of landlords and Liens of carriersmechanics, materialmen, warehousemen, mechanics, materialmen and carriers or other similar Liens, statutory Liens securing obligations that are not yet due (or are being contested in each case, good faith and for which adequate reserves have been established) and are incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
business, (df) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' ’ compensation, unemployment insurance or other social security, old age pension or public liability obligations, (g) 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 types of social security funds maintained with a depository institution, (h) Liens on cash or retirement benefits, or (ii) securities pledged to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and appeal bonds, appeal government contracts, performance and return of money bonds, bids, leases (other than Capitalized Leases)trade contracts, performance bondsleases, purchasestatutory obligations, construction or sales contracts regulatory obligations and other similar obligationsobligations of a like nature incurred in the ordinary course of business, (i) judgment and attachment Liens not giving rise to an Event of Default and with respect to which no enforcement action has been commenced, (j) landlord’s liens covering property leased by either Borrower or a Subsidiary; provided that such Borrower or such Subsidiary will use commercially reasonably efforts to obtain a landlord subordination agreement in each case not incurred form and substance reasonably satisfactory to the Agent (with respect to properties leased by US Borrower or made any Domestic Subsidiary) or Cdn. Lender (with respect to properties leased by Cdn. Borrower or any Canadian Subsidiary) for any location leased by such Borrower or such Subsidiary where a material portion of inventory is stored, (k) rights and interests of consignees arising in connection with the borrowing of moneyinventory held by such Person on consignment, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
and (el) Liens existing on the date assets of the First Amendment UK Borrowers and their Subsidiaries securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (fSection 12.1(j), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
Limitation on Liens. The Company will notWithout first obtaining the Bank’s prior written consent, and will the Borrower shall not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume assume, or suffer to exist, or permit to exist (create, incur, assume, or suffer to exist, any lien or security interest upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted SubsidiaryCollateral, whether now owned or held or hereafter acquired, or any income or profits therefromexcept for the following (collectively, or assign or otherwise convey any right to receive income or profits, except:“Permitted Liens”):
(a) Liens liens in favor of the Bank;
(b) liens for taxes, taxes or assessments or other governmental government charges which are or levies if not yet due and payable or, if due and payable, if they are being contested in good faith by appropriate proceedings and for which appropriate reserves are maintained in accordance with GAAP, in each case so long as such liens do not individually or in the payment of which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, aggregate have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)Material Adverse Effect;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen purchase money security interests in Equipment and other similar Liensbusiness assets financed by vendors, in each caseprovided that the aggregate of all purchase money financings shall not exceed One Hundred Fifty Thousand Dollars ($150,000.00) and provided that such liens are or were given solely to secure the purchase price of the assets being financed, incurred in do not extend to any other property or assets of the ordinary course Borrower other than any proceeds of business for sums not yet due such property or assets, and payable are or the payment of which is not were given at the time required by Section 4.13of acquisition of such assets;
(d) Liens (other than any Lien imposed by ERISA) liens incurred or deposits made in the ordinary course of the Borrower’s business (i) in connection with workers' ’ compensation, unemployment insurance and other types of insurance, social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationslaws;
(e) liens of mechanics, laborers, materialmen, carriers and warehousemen arising by operation of law to secure payment for labor, materials, supplies or services incurred in the ordinary course of the Borrower’s business, but only if the payment thereof is not at the time required and such liens do not, individually or in the aggregate, materially detract from the value or limit the use of any property subject thereto;
(f) liens outstanding at the date of this Agreement, but solely to the extent described on the Disclosure Schedule;
(g) the interests of lessors under operating leases and non-exclusive licenses under license agreements;
(h) liens subject to an intercreditor and/or subordination agreement in form and substance acceptable to the Bank;
(i) liens on amounts deposited in connection with public and statutory obligations in the ordinary course of business or the making or entering into of bids, tenders, or leases in the ordinary course of business, in each case not incurred or made in connection with the borrowing of money, money (but specifically permitting liens on amounts deposited to secure performance or payment bonds obtained in the obtaining ordinary course of advances or credit or the payment of the deferred purchase price of Propertybusiness);
(ej) Liens existing liens on amounts deposited as security for surety or appeal bonds in connection with obtaining such bonds in the date ordinary course of business, provided the First Amendment and securing the Debt aggregate amount of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentsuch deposits shall not exceed Fifty Thousand Dollars ($50,000.00);
(fk) any Lien created to secure all or any part liens on premiums and proceeds of insurance policies securing the purchase price, or to secure Debt incurred or assumed to pay all or any part financings of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided thatsuch premiums;
(il) any statutory liens in favor of landlords provided that Bank has received a landlord waiver from such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertylandlord; and
(gm) in addition with respect to any real property, easements, rights of way, and zoning restrictions that do not materially interfere with or impair the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable use or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3operation thereof.
Appears in 1 contract
Samples: Loan and Security Agreement
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Indebtedness of the First Amendment and securing the Debt of a Restricted Subsidiary to the Company and its or to a Wholly-Owned Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Lien created Liens existing on the Closing Date and reflected in Schedule 10.4;
(g) Liens incurred after the Closing Date (including Liens incurred in connection with Capitalized Leases and Off-Balance Sheet Obligations) given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) any interest or title of a lessor under any operating lease entered into by the Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the Company or any Restricted Subsidiary, as lessee or consignee, in the ordinary course of business;
(k) Liens in favor of banking institutions arising by operation of law encumbering deposits (including the right of set-off) held by such Lien shall at no time exceed an amount equal banking institutions incurred in the ordinary course of business and that are within the general parameters customary in the banking industry;
(l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the lesser capital stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(Am) possessory rights of customers of the cost to Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Company or any Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Restricted Subsidiary of to facilitate the Property (purchase, shipment or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) storage of such Property (or improvement thereon) at the time of such acquisition or construction, andInventory;
(iiio) any such Lien shall be created contemporaneously Liens arising in connection with trade letters of credit issued to secure the acquisition or construction purchase of such Property; and
(g) Inventory in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(r) other Liens not otherwise permitted by paragraphs (a) through (q), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the applicable limitations set forth in Section 4.2 10.2 and 4.3Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (r) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary;
(f) Liens existing on the date of the First Amendment this Agreement and securing the Debt of the Company and its Restricted Subsidiaries referred to reflected in Exhibit B to the First AmendmentSchedule 10.4;
(fg) any Lien created Liens incurred after the date of this Agreement (including Liens incurred in connection with Capitalized Leases and Off-Balance Sheet Obligations) given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(i) any interest or title of a lessor under any operating lease entered into by the Company or any Restricted Subsidiary, as lessee, in the ordinary course of business and covering only the assets so leased;
(j) Liens arising from precautionary UCC financing statement filings with respect to operating leases or consignment arrangements entered into by the Company or any Restricted Subsidiary, as lessee or consignee, in the ordinary course of business;
(k) Liens in favor of banking institutions arising by operation of law encumbering deposits (including the right of set-off) held by such Lien shall at no time exceed an amount equal banking institutions incurred in the ordinary course of business and that are within the general parameters customary in the banking industry;
(l) any encumbrance or restrictions (including, without limitation, any put and call agreements) with respect to the lesser Capital Stock of any joint venture or Subsidiary pursuant to the agreement governing such joint venture or Subsidiary;
(Am) possessory rights of customers of the cost to Company or any Restricted Subsidiary and their Restricted Subsidiaries in equipment for resale arising under the leases, bailment arrangements and rental agreements entered into in the ordinary course of business of the Company or such Restricted Subsidiary;
(n) Liens upon specific items of Inventory and the proceeds thereof securing the obligations of the Company or any Restricted Subsidiary in respect of bankers’ acceptances issued or created for the account of the Company or such Restricted Subsidiary of to facilitate the Property (purchase, shipment or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) storage of such Property (or improvement thereon) at the time of such acquisition or construction, andInventory;
(iiio) any such Lien shall be created contemporaneously Liens arising in connection with trade letters of credit issued to secure the acquisition or construction purchase of such Property; and
(g) Inventory in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt Liens shall cover only the documents in respect of which such letters of credit were issued, the goods covered thereby and the insurance proceeds of such goods;
(p) security and other deposits made by the Company or any Restricted Subsidiary under the terms of any lease or sublease of property entered into by the Company or such Restricted Subsidiary in the ordinary course of business;
(q) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (f), (g) and (h) of this Section 10.4, provided that (1) no additional property shall be encumbered by such Liens, (2) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(r) other Liens not otherwise permitted by paragraphs (a) through (q), inclusive, of this Section 10.4 securing Indebtedness; provided that (1) the aggregate principal amount of all Indebtedness secured by such Liens shall be permitted by the applicable limitations set forth in Section 4.2 10.2 and 4.3Section 10.3, (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (3) no such Liens incurred pursuant to this paragraph (r) shall secure Indebtedness outstanding under the Bank Credit Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (Mettler Toledo International Inc/)
Limitation on Liens. The Company will notDirectly or indirectly, and will not create, incur, ------------------- assume or suffer to exist, or permit any of its Restricted Significant Subsidiaries to, directly or indirectly to create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) exist, any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens any Lien on any property now owned or hereafter acquired or con- structed by the Company or a Subsidiary, or on which property so owned, acquired or constructed is located, which Lien (i) in the case of any property so acquired, existed on such property at the time of acquisition thereby by the Company or such Subsidiary or (ii) secures or provides for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which any part of the purchase or construction price or cost of improvements of such property and was created prior to, contemporaneously with or within 360 days after, such purchase, construction or improvement (and any replacements or refinancings for such Liens); provided, that (i) if a firm commitment from a -------- bank, insurance company or other lender or investor (not including the Company, a Subsidiary or an Affiliate of the Company) for the financing of the acquisition or construction of property is made prior to, contemporaneously with or within the 360-day period hereinabove referred to, the applicable Lien shall be deemed to be permitted by this paragraph (a) whether or not created or assumed within such period, and (ii) each such Lien is not at spread to cover any additional property and the time required by Section 4.13amount of Indebtedness secured thereby is not increased;
(b) any attachment Liens for taxes not yet delinquent or judgment Lienwhich are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves with respect thereto are maintained on the books of the Company or its Subsid- iaries, unless as the judgment it secures shall notcase may be, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)in conformity with GAAP;
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13business;
(d) Liens of landlords or of mortgagees of landlords arising by operation of law;
(e) pledges, deposits or other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) Liens in connection with workers' compensation, unemployment insurance and insurance, other types of social security benefits or retirement benefitsother insurance related obligations (including, without limitation, pledges or deposits securing liability to insurance carriers under insurance or self- insurance arrangements) and Liens on the proceeds of insurance policies created in connection with any of the foregoing;
(iif) Liens arising by reason of any judgment, decree or order of any court or other Governmental Authority, if appropriate legal proceedings which have been duly initiated for the review of such judgment, decree or order, are being diligently prosecuted and have not been finally terminated or the period within which such proceedings may be initiated shall not have expired;
(g) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchasejudgment and like bonds, construction or sales contracts replevin and similar bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(eh) Liens existing zoning restrictions, easements, rights-of-way, restrictions on the date use of property, other similar encumbrances incurred in the ordinary course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmenttaken as a whole;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use Liens on Purchased Receivables and related assets granted in connection with such acquired one or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertymore Purchased Receivables Financings; and
(gj) in addition to the Liens any Lien not otherwise permitted by the preceding clauses (a) through (f), inclusive, of under this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiarysubsection 6.3, provided that the aggregate amount of indebtedness secured by all such Priority Debt shall be Liens, -------- together with the aggregate sale price of property involved in sale and leaseback trans- actions not otherwise permitted by under subsection 6.4, does not exceed the applicable limitations set forth in Section 4.2 and 4.3greater of $100,000,000 or 10% of Consolidated Net Worth.
Appears in 1 contract
Limitation on Liens. The Company Obligors will not, and will not permit any of its Restricted their Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company Obligors or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 sixty (60) days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 sixty (60) days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) encumbrances in the nature of leases, subleases, zoning restrictions, easements, rights-of-way, restrictions and other similar charges, encumbrances, or defects of title incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Obligors or any of their Subsidiaries, on Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B a Subsidiary to the First AmendmentObligors or to a Wholly-Owned Subsidiary;
(f) Liens granted by Subsidiary Guarantors to Xxxxx Investment Co. that secure intercompany Debt, provided that Xxxxx Investment Co. shall at all times remain a Wholly-Owned Subsidiary;
(g) Liens securing Debt existing on property or assets of the Obligors or their Subsidiaries existing as of the date of Closing and reflected in Schedule 10.3;
(h) Liens securing Debt on property or assets of the Obligors or their Subsidiaries which Liens were given after the date of Closing, provided the Obligors make, or cause to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien created on such property;
(i) Liens incurred after the date of Closing given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of any Obligor or any Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; and (ii) at the time of acquisition, construction or improvement of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by such Obligors or such Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of an Obligor to whom authority to enter into the transaction has been delegated by the board of directors of such Obligor);
(j) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into any Obligor or any Subsidiary or its becoming a Subsidiary, or substantially all of its assets are acquired by any Obligor or Subsidiary, or any improvement thereon, Lien existing on any property acquired by any Obligor or constructed by any Subsidiary at the Company time such property is so acquired (whether or a Restricted Subsidiary after not the date of the First AmendmentDebt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(k) any extensions, and
renewals or replacements of any Lien permitted by the preceding subparagraphs (e), (f), (i) and (j) of this Section 10.3, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) any at such Lien time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be created contemporaneously with the acquisition or construction of such Propertycontinuing; and
(gl) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company Obligors or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by Section 10.2, provided that no such Liens permitted pursuant to the applicable limitations set forth in terms of this Section 4.2 10.3 may secure any obligations under the Senior Credit Agreement unless the Company makes, or causes to be made, effective a provision whereby the Notes will be equally and 4.3ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders.
Appears in 1 contract
Samples: Note Purchase Agreement (Brady Corp)
Limitation on Liens. The Company will shall not, and will shall ------------------- not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly createindirectly, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on of any kind upon any of its property or with respect to assets (including any Property shares of Capital Stock or asset (including, without limitation, Indebtedness of any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary), whether now owned on the Issue Date or held or hereafter acquiredacquired after the Issue Date, or any income or profits therefrom, except if the Securities (or assign the Guarantee of the Securities, in the case of Liens on properties or otherwise convey assets of any right Guarantor) and all other amounts due under this Indenture are directly secured equally and ratably with (or prior to receive income in the case of Liens with respect to Subordinated Indebtedness) the obligation or profitsliability secured by such Lien, exceptexcluding, however, from the operation of the foregoing any of the following:
(a) Liens for any Lien existing as of the Issue Date;
(b) any Lien arising by reason of (i) any judgment, decree or order of any court, so long as such Lien is in existence less than 30 days after the entry thereof or adequately bonded or the payment of such judgment, decree or order is covered (subject to a customary deductible) by insurance maintained with responsible insurance companies; (ii) taxes, assessments or other governmental charges which that are not yet due and payable delinquent or are being contested in good faith; (iii) security for payment of workers' compensation or other insurance; (iv) good faith deposits in connection with tenders, leases or contracts (other than contracts for the payment of borrowed money); (v) zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which is not at materially impairs the time required by Section 4.13;
use of any property or assets material to the operation of the business of the Company or any Restricted Subsidiary or the value of such property or assets for the purpose of such business; (bvi) any attachment deposits to secure public or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appealstatutory obligations, or shall in lieu of surety or appeal bonds with respect to matters not have been discharged within 30 days after yet finally determined and being contested in good faith by negotiations or by appropriate proceedings that suspend the expiration collection thereof; or (vii) operation of any such stay (or such lesser period law in favor of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liensmaterialmen, in each caselaborers, employees or suppliers, incurred in the ordinary course of business for sums that are not yet due and payable delinquent or are being contested in good faith by negotiations or by appropriate proceedings that suspend the payment collection thereof;
(c) any Lien now or hereafter existing on property or assets of which is not at the time required by Section 4.13Company or any Guarantor securing Indebtedness of such Person incurred pursuant to the Senior Credit Agreement;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business securing Acquired Indebtedness created prior to (i) and not created in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefitswith, or (ii) to secure (or to obtain letters of credit that securein contemplation of) the performance incurrence of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed such Indebtedness by the Company or a Restricted Subsidiary after Subsidiary; provided that any such -------- Lien extends only to the date of assets that were subject to such Lien securing such Acquired Indebtedness prior to the First Amendment, provided thatrelated acquisition;
(ie) any such Lien shall extend solely to the item leases or items of such Property (or improvement thereon) so acquired or constructed and, if required subleases granted by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary any of its Subsidiaries to any other Person in the ordinary course of business;
(f) Liens in the nature of trustees' Liens granted pursuant to any indenture governing any indebtedness permitted by Section 3.8, in each case in favor of the Property trustee under such indenture and securing only obligations to pay any compensation to such trustee, to reimburse its expenses and to indemnify it under the terms thereof;
(or improvement thereong) so acquired or constructed and Liens to secure Indebtedness (Bincluding Capitalized Lease Obligations) the fair market value permitted by paragraph (as determined in good faith by the board of directors of the Companyb)(vii) of Section 3.8 covering only the assets acquired with such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such PropertyIndebtedness; and
(gh) any extension, renewal, refinancing or replacement, in addition to whole or in part, of any Lien described in the Liens permitted by the preceding foregoing clauses (a) through (f), inclusive, g) so long as the amount of this Section 4.4, Liens on Property (other than accounts receivable property or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that assets subject to such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Lien is not increased thereby.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at such Person in conformity with GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time required by Section 4.13to time in their respective jurisdictions of incorporation);
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or legislation;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentbusiness of such Person;
(f) any Lien created to secure all or any part Existing Liens listed on Schedule 9.3;
(g) Liens securing Indebtedness of the purchase priceBorrower permitted by subsection 9.2(g) incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan, a Financing Lease or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventoryotherwise), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
PROVIDED that (i) any such Lien Liens shall extend solely to be created substantially simultaneously with the item or items acquisition of such Property fixed or capital assets, (or improvement thereonii) so acquired or constructed and, if required by such Liens do not at any time encumber any property other than the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved property financed by such acquired or constructed Property Indebtedness, (or improvement thereon),
iii) the amount of Indebtedness secured thereby is not increased and (iiiv) the principal amount of the Debt Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) original purchase price of such Property (or improvement thereon) property at the time it was acquired;
(h) Liens on current assets of any Foreign Subsidiary securing Indebtedness of such acquisition or construction, andForeign Subsidiary permitted under subsection 9.2(i);
(iiii) Liens (not otherwise permitted hereunder) which secure obligations in aggregate amount at any such Lien shall be created contemporaneously time outstanding not exceeding (as to the Borrower and all Subsidiaries), and on property with the acquisition or construction of such Propertyan aggregate value not exceeding, $1,000,000; and
(gj) in addition Liens created pursuant to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Security Documents.
Appears in 1 contract
Limitation on Liens. The Company will Lessee shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (any Lien, other than Permitted Encumbrances, upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptother than the following:
(a1) any Lien existing on the Initial Closing Date and set forth in Schedule III, and any extension, renewal or replacement of any such Lien so long as the principal amount secured thereby is not increased (other than an increase resulting solely from a change in applicable rates of exchange between U.S. Dollars, on the one hand, and any other currency in which such principal amount is denominated, on the other hand) and the scope of the property subject to such Lien is not extended;
(2) Liens imposed by law for taxes, assessments or other governmental charges which are of any Governmental Authority for claims not yet due and payable due, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.138.1(l), provided that no notice of Lien has been filed or recorded under the Code;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c3) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred Liens imposed by law or created in the ordinary course of business for sums which are not yet due and delinquent or remain payable without penalty or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(d4) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(5) Liens on the property of the Lessee or retirement benefits, or any Subsidiary securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) surety bondsbonds (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 in the ordinary course of business, provided all such Liens in the aggregate would not (even if enforced) cause a Material Adverse Effect;
(6) Liens consisting of judgment or judicial attachment liens and liens securing contingent obligations on appeal bondsbonds and other bonds posted in connection with court proceedings or judgments, bidsprovided that (i) in the case of judgment and judicial attachment liens, leases the enforcement of such Liens is effectively stayed and (other than Capitalized Leases)ii) all such liens in the aggregate at any time outstanding for the Lessee and its Subsidiaries do not exceed $20,000,000;
(7) easements, performance bondsrights-of-way, purchasecovenants, construction or sales contracts conditions, restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, individually or in each case the aggregate, do not incurred or made in connection materially interfere with the borrowing ordinary conduct of moneythe respective businesses of the Lessee and its Subsidiaries;
(8) Liens securing obligations in respect of Capital Leases on assets subject to such leases, provided that such Capital Leases are otherwise permitted hereunder;
(9) 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 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 obtaining Lessee in excess of advances those set forth by regulations promulgated by the Federal Reserve Board, and (ii) such deposit account is not intended by the Lessee or credit any Subsidiary to provide collateral to the depository institution;
(10) any Lien on property existing at the time of acquisition of such property by the Lessee or a Subsidiary, or Liens to secure the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, price of property upon the acquisition of property by the Lessee or a Subsidiary or to secure any Debt incurred or assumed to pay guaranteed prior to, at the time of, or within one hundred eighty (180) days after, the later of the date of acquisition of such property and the date such property is placed in service, for the purpose of financing all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory)thereof, or Liens to secure any improvement thereon, acquired Debt incurred or constructed by guaranteed for the Company or a Restricted Subsidiary after the date purpose of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) financing the cost to the Company Lessee or a Subsidiary or improvements to such Restricted Subsidiary acquired property;
(11) other Liens, in addition to those permitted by clauses (1) through (10), securing Debt or arising in connection with Securitization Transactions; provided that the sum (without duplication) of all such Debt, plus the Property aggregate investment or claim held at any time by all purchasers, assignees or other transferees of (or improvement thereonof interests in) so acquired or constructed receivables and (B) other rights to payment in all Securitization Transactions, shall not at any time exceed in the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyaggregate $200,000,000; and
(g12) rights of first refusal, rights of Governmental Authorities to approve transfers and other similar restrictions on transfer of any ownership interest of the Lessee or any of its Subsidiaries in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property any joint venture or similar investment in an entity (other than accounts receivable or inventory of any Companya Subsidiary) securing Priority Debt operating primarily outside of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3United States.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not ------------------- suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens "): ---------------
(a) any document or instrument in respect of goods or accounts receivableLien (other than a Lien on the Collateral) existing on property of the Company or any Restricted Subsidiary on the Effective Date and set forth in Schedule 8.01 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date; -------------
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.07, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISAERISA and other than on the Collateral) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentlegislation;
(f) Liens (other than Liens on the Collateral) on the property of the Company or its Restricted Subsidiary securing (i) the non-delinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other non-delinquent obligations of a like nature; in each case, incurred in the ordinary course of business; provided all such Liens in the aggregate would not (even if -------- enforced) reasonably be expected to cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively stayed and all such -------- Liens in the aggregate at any Lien time outstanding for the Company and the Restricted Subsidiaries do not exceed $5,000,000;
(h) easements, rights-of-way, restrictions and other similar encumbrances (other than Liens on the Collateral) incurred in the ordinary course of business which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the businesses of the Company and the Restricted Subsidiaries;
(i) Liens on assets (other than the Collateral) of corporations which become Restricted Subsidiaries after the date of this Agreement; provided -------- that such Liens existed at the time the respective corporations became Restricted Subsidiaries and were not created to secure in anticipation thereof;
(j) purchase money security interests on any property (other than the Collateral) acquired or held by the Company or any Restricted Subsidiary in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any such Lien shall extend attaches to such property concurrently with or -------- within 60 days after the acquisition thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all such Lien purchase money security interests shall not at no any time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and$15,000,000;
(iiik) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory Liens on the Collateral) securing obligations in respect of Capitalized Leases on assets subject to such leases; provided that -------- such Capitalized Leases are otherwise permitted hereunder;
(l) Liens arising solely by virtue of any Company) securing Priority Debt statutory or common law provision relating to banker's liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided that such deposit account is not a part of the -------- ---- Collateral and is not subject to restrictions against access by the Company or any Restricted Subsidiary, as the case may be, in excess of those set forth by regulations promulgated by the FRB;
(m) Liens consisting of pledges of Cash, Cash Equivalents, Qualifying Investments or Long Term Treasury Securities owned by the Company to secure, on a xxxx-to-market basis, obligations under Swap Contracts of the Company or any Restricted Subsidiary relating to commodity prices entered into in the ordinary course of business as bona fide hedging transactions or to secure petroleum inventory delivery requirements resulting therefrom; provided -------- that (i) the counterparty to such Priority Debt shall be Swap Contract is an entity listed on Schedule -------- 8.01(m) of this Agreement or an Affiliate of such an entity, or such ------- counterparty is under a similar requirement to deliver similar collateral from time to time to the Company and the Restricted Subsidiary party thereto, and (ii) the aggregate value of such collateral so pledged by the Company and the Restricted Subsidiaries together in favor of all counterparties does not at any time exceed $50,000,000;
(n) Liens (other than Liens on the Collateral) (i) arising from precautionary filings of UCC financing statements relating solely to operating leases permitted by this Agreement and (ii) on equipment or intangible assets purchased in connection with an operating lease permitted by this Agreement granted to secure obligations under such operating lease;
(o) Liens on Cash or Qualifying Investments pledged in lieu of letters of credit for bonding and performance requirements, insurance requirements and workers' compensation requirements of the applicable limitations set forth Company or any Restricted Subsidiary so long as the aggregate amount of Cash and Qualifying Investments so pledged does not exceed $10,000,000 at any time;
(p) Liens on Inventory under Section 9-319 of the UCC as in effect in the State of Texas as of the Effective Date;
(q) Liens (other than Liens on the Collateral) on fixed assets of the Company or any Restricted Subsidiary to secure tax-exempt industrial development bonds permitted by Section 4.2 and 4.38.05(f); and
(r) Liens on stock or assets of Unrestricted Subsidiaries.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business securing obligations which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows a judgment creditor to levy on such judgment)more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) Liens in connection with the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(e) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made which, in the ordinary course aggregate, are not substantial in amount and which do not in any case materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with Indebtedness incurred pursuant to subsection 12.2(h);
(g) Liens securing Indebtedness permitted by subsection 12.2(k) and any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that, in each case, (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the First AmendmentCompany or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary, including with respect to Capital Lease Obligations; provided thatthat (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt a bank account of the Company or any Restricted SubsidiarySubsidiary arising in connection with the cash pooling arrangements referred to in subsection 12.2(c);
(j) Liens arising out of any judgment or award (i) with respect to which an appeal or proceeding for review is being prosecuted in good faith by appropriate proceedings diligently conducted, provided and with respect to which a stay of execution is in effect; and (ii) that such Priority Debt shall be does not constitute an Event of Default under clause (i) of Section 13; and
(k) Liens (not otherwise permitted by hereunder) which secure obligations not exceeding (as to the applicable limitations set forth in Section 4.2 Company and 4.3all Domestic Subsidiaries) a Dollar Equivalent Amount equal to $50,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other assessments, governmental charges which are or levies not yet due or which are being contested in good faith and payable or by appropriate proceedings if adequate reserves (in the payment good faith judgment of which is not at the time required by Section 4.13Company) with respect thereto are maintained on the books of the Company in accordance with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carrierscarrier's, vendor's, warehousemen's, mechanicsmechanic's, materialmen materialmen's, repairmen's, or other like Liens arising in the ordinary course of business if the obligations secured by such Liens are not overdue for a period of more than 60 days or which are being contested in good faith and (if necessary) by appropriate proceedings;
(c) pledges or deposits and Liens under bonds required in connection with worker's compensation, unemployment insurance and other social security legislation incurred in the ordinary course of business;
(d) Liens incurred or deposits to secure the performance of tenders, bids, contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance and return-of-money bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made which, in the ordinary course aggregate, are not substantial in amount, and which do not in any case materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date business of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentCompany;
(f) any Lien created to secure all Liens arising from judgments or any part decrees in circumstances not constituting an Event of Default under subsection 8.1(g);
(g) purchase money Liens securing obligations arising from the purchase priceacquisition by the Company of property, or to secure Debt incurred or assumed to pay all or any part provided that the principal amount of such obligations does not exceed the purchase price of such property;
(A) Liens in existence on the date of this Agreement, (B) Liens on any property existing at the time of acquisition thereof (including Liens on any property acquired from a Person which is merged into the Company) and (C) any extension, renewal or cost refunding of constructionany Lien referred to in clause (A) or (B), of Property provided that no such Lien is extended to cover any additional property (other than accounts receivable replacement property) and that the amount of Indebtedness secured thereby is not increased;
(i) Liens in respect of future demand charges or inventory), or any improvement thereon, acquired or constructed reservation charges sold by the Company or a Restricted any Subsidiary after the date of the First Amendment, provided thatnot exceeding $275,000,000 at any one time;
(ij) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use Liens in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt favor of the Company or any Restricted Subsidiary;
(k) Liens in favor of the Administrative Agent, provided any Issuing Lender or the Lenders under this Agreement; and
(l) other Liens securing obligations such that the aggregate book value (net of applicable reserves) of the assets securing such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3obligations does not exceed at any one time an amount equal to 10% of Consolidated Tangible Assets at such time.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is levies, or other statutory obligations, not at the time required delinquent or that are being contested in good faith by Section 4.13appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of Mid-Holdings or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) any attachment carriers’, warehousemen’s, landlords’, mechanics’, contractors’, materialmen’s, repairmen’s or judgment other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 60 days or if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, unless or that are being contested in good faith by appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the judgment it secures shall notbooks of the Group Members in conformity with GAAP), within 30 days after (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the entry thereof, have been discharged importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or execution other goods and proceeds thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any Person securing such stay (Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such lesser period other goods in the ordinary course of time as applicable law allows a judgment creditor to levy on such judgment)business;
(c) (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any Group Member;
(d) Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory Liens obligations, surety, stay, customs and appeal bonds, performance and/or return of landlords money bonds, completion guarantees and Liens other obligations of carriersa like nature (including those to secure health, warehousemensafety and environmental obligations) incurred in the ordinary course of business;
(e) easements, mechanicsrights-of-way, materialmen covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property), encroachments, protrusions and other similar Liens, in each case, encumbrances and title defects incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made that, in the ordinary course aggregate, do not materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the Property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date business of the First Amendment and securing the Debt Group Members taken as a whole; provided, that none of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentforegoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, (y) disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereof or (z) that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien created permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to secure all any additional property other than (A) after-acquired property that is affixed or any part incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the purchase priceobligations secured or benefited by such Liens is permitted by Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to secure Debt incurred or assumed to pay all or any part such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of Property such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(other than accounts receivable h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Replacement Facility or inventoryExtended Term Loans), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that;
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of Mid-Holdings after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted by Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Lien shall extend Liens cover solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms Property of the instrument originally creating such Lien, other Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto);
(l) Liens securing (x) Indebtedness permitted under Section 6.2(h) or improvement thereonany Refinancing Indebtedness in respect thereof, (y) obligations arising under any Specified Hedge Agreements (as defined in the ABL Credit Agreement) entered into not for speculative purposes or (z) Cash Management Obligations (as defined in the ABL Credit Agreement) in the ordinary course of business; provided, that the relative Lien priority thereof is set forth in the Intercreditor Agreements;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(p) licenses and sublicenses of Intellectual Property granted by any Group Member in the ordinary course of business;
(q) UCC financing statements, PPSA financing statements or similar public filings that are filed as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business;
(r) Liens on property rented to, or leased by, any Group Member pursuant to a Sale and Leaseback Transaction; provided, that (i) such Sale and Leaseback Transaction is an improvement permitted by Section 6.10, (ii) such Liens do not encumber any other property of Mid-Holdings or its Restricted Subsidiaries and the proceeds and products of and accessions to or is acquired for specific use such property, and (iii) such Liens secure only the Attributable Indebtedness incurred in connection with such acquired or constructed Property Sale and Leaseback Transaction;
(or improvement thereons) Liens on the assets of Non-Loan Party Subsidiaries that secure (i) Indebtedness of Non-Loan Party Subsidiaries permitted pursuant to Section 6.2 (and related obligations) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) obligations of Non-Loan Party Subsidiaries other than Indebtedness and incurred in the principal ordinary course of business;
(i) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt, or any Incremental Equivalent Debt, and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of. any of the foregoing, and (ii) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt or Incremental Equivalent Debt (in each case, as defined in the Senior Lien Credit Agreement as in effect as of the date hereof) and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of, any of the foregoing;
(u) good xxxxx xxxxxxx money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q)) or letter of intent or purchase agreement permitted hereunder;
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser greater of (A) the cost to the Company or such Restricted Subsidiary $48.0 million and 3.60% of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) Consolidated Total Assets at the time of such acquisition or construction, andincurrence thereof;
(iiiw) any Liens securing Refinancing Indebtedness permitted by Section 6.2(v) (and related obligations) if such Lien shall be created contemporaneously Liens are permitted to secure such Indebtedness in accordance with the acquisition definition of “Refinancing Indebtedness”;
(x) Liens in favor of Mid-Holdings, the Borrower or construction any Subsidiary Guarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such PropertyLien;
(i) Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement, and (ii) reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on Permitted Receivables Financing Assets securing any Permitted Receivables Financing; and
(gee) Liens securing obligations in addition to respect of trade-related letters of credit permitted under Section 6.2 and incurred in the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company Group Members and covering the goods (or any Restricted Subsidiary, provided that the documents of title in respect of such Priority Debt shall be permitted goods) financed by such letters of credit and the applicable limitations set forth in Section 4.2 proceeds and 4.3products thereof.
Appears in 1 contract
Samples: Junior Lien Term Loan Credit Agreement (Forterra, Inc.)
Limitation on Liens. The Company will Parent shall not, and will shall cause its Subsidiaries not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due or which are being contested in good faith by appropriate proceedings, PROVIDED that adequate reserves with respect thereto are maintained on the books of the Parent and payable or the payment of which is not at the time required by Section 4.13its Subsidiaries in conformity with GAAP;
(b) any attachment carriers', warehousemen's, mechanics', materialmen's, repairmen's, landlord's or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows more than 90 days or which are being contested in good faith by appropriate proceedings and which, in any case, do not encumber a judgment creditor to levy on such judgment)material amount of the assets of the Parent or its Subsidiaries;
(c) statutory Liens securing Indebtedness of landlords the Parent and its Subsidiaries incurred to finance the acquisition or construction of fixed or capital assets to the extent such Indebtedness is permitted pursuant to SECTION 5.11(D), PROVIDED that (i) such Liens shall be created at the time of carriersthe acquisition or construction of such fixed or capital assets, warehousemen(ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and proceeds thereof, mechanics(iii) the principal amount of Indebtedness secured thereby is not increased and (iv) the proceeds of the Indebtedness secured by any such Lien shall not secure more than 100% of the original purchase price of such property;
(d) easements, materialmen rights-of-way, restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made which, in the ordinary course aggregate, are not substantial in amount and which do not in any case materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price business of Property;the Parent or its Subsidiaries; and
(e) Liens existing created pursuant to the Collateral Documents and Liens in existence on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B hereof pursuant to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Credit Facility documentation.
Appears in 1 contract
Samples: Senior Secured Loan Facility and Guaranty Agreement (Railamerica Inc /De)
Limitation on Liens. The Company will not, not and will not permit any of its Restricted Subsidiaries to, directly Subsidiary to create or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency be incurred or otherwise) to exist, any Lien on its or with respect to their property or assets, including any Property or asset (including, without limitation, capital stock of any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or upon any income or profits therefrom, or assign transfer any property for the purpose of subjecting the same to the payments of obligations in priority to the payment of its or otherwise convey their general creditors, or acquire or agree to acquire, or permit any right Subsidiary to receive income acquire, any property or profitsassets upon conditional sales agreements or other title retention devices, unless the Notes are equally and ratably secured except:
(a) Liens for taxes, taxes and assessments or other governmental charges which are or levies not yet due or which are being contested in good faith by appropriate proceedings promptly initiated and payable or the diligently conducted in accordance with Section 9.4 hereof, provided that payment of which thereof is not at the time required by Section 4.139.4 hereof;
(b) Liens of or resulting from any attachment judgment or judgment Lienaward, unless the judgment it secures shall not, within 30 days after time for the entry thereof, have been discharged appeal or execution thereof stayed pending appeal, or petition for rehearing of which shall not have been discharged within 30 days after the expiration of any such stay (expired, or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment respect of which the Company or a Subsidiary shall at any time in good faith be prosecuting an appeal or a proceeding for a review shall have been secured, provided that payment thereof is not at the time required by Section 4.139.4 hereof;
(c) Liens incidental to the normal conduct of the business or the ownership of properties and assets of the Company or any Subsidiary (including Liens in connection with worker’s compensation, unemployment insurance, old age pensions, other social security benefits or obligations and other like laws, warehousemen’s, mechanics’, materialmen’s and attorney’s liens and statutory landlord’s liens) and Liens to secure statutory obligations, surety, penalty or appeal bonds or other Liens of like general nature incurred in the ordinary course of business and not in connection with the incurrence of Indebtedness and which do not in the aggregate materially impair the use of such property or assets in the operation of the business of the Company, and the Company and its Subsidiaries taken as a whole, or the value of such property or assets for the purposes of such business; provided in each case, the obligation secured is not overdue (or, with respect to warehousemen’s, mechanics’ and materialmens’ lien, not overdue for a period longer than 30 days), or if so overdue, is being contested in good faith by appropriate actions or proceedings;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in existing existing at the ordinary course of business (i) in connection with workers' compensation, unemployment insurance Amendment Closing Date and other types of social security or retirement benefits, or (ii) set forth on Schedule 1.11 to secure (or the Third Amendment to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of PropertyNote Purchase Agreement.”;
(e) Liens existing on any Lien renewing, extending or refunding any Lien permitted by paragraph (d) of this Section 10.7, provided that (i) the date principal amount of Indebtedness secured by such Lien immediately prior to such extension, renewal or refunding is not increased or the First Amendment maturity thereof reduced, (ii) such Lien is not extended to any other property, and securing the Debt (iii) immediately after such extension, renewal or refunding no Default or Event of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentDefault would exist;
(f) Liens on property or assets of any Subsidiary securing Indebtedness owing to the Company or to any of its Wholly-Owned Subsidiaries; and
(g) (i) any Lien created on property (other than the land and improvements comprising the Company’s office building located at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxx 55435) to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any a part of the purchase price or cost of the construction of such property created contemporaneously with, or within 180 days after, such acquisition or the completion of such construction, or (ii) any Lien in property existing in such property at the time of Property (other than accounts receivable acquisition thereof, whether or inventory), or any improvement thereon, acquired or constructed not the Indebtedness secured thereby is assumed by the Company or such Subsidiary, or (iii) any Lien existing in the property of a Restricted corporation at the time such corporation is merged into or consolidated with the Company or a Subsidiary after or at the date time of a sale, lease or other disposition of the First Amendment, provided that
(i) any such Lien shall extend solely to the item properties of a corporation or items of such Property (firm as an entirety or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is substantially as an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost entirety to the Company or such Restricted Subsidiary a Subsidiary; provided, however, that the Indebtedness secured by any Lien permitted by this paragraph (g) shall not in the aggregate exceed 100% of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) related property.”
1.12 Amendment of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.10.9
Appears in 1 contract
Samples: Note Purchase Agreement (Analysts International Corp)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "PERMITTED LIENS"):
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Closing Date and set forth in SCHEDULE 7.1 securing Indebtedness outstanding on such Restricted Subsidiarydate or Lien associated with the Senior Credit Agreement, whether now owned as it may be amended, increased or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right modified from time to receive income or profits, except:time;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.7, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens on the property of the Company or retirement benefits, or its Subsidiary securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business, provided all such Liens in the aggregate would not (other than Capitalized Leases)even if enforced) cause a Material Adverse Effect;
(g) easements, performance bondsrights-of-way, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;Subsidiaries; and
(fh) Liens arising solely by virtue of any Lien created statutory or common law provision relating to secure all banker's liens, rights of set-off or any part 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 Company in excess of those set forth by regulations promulgated by the purchase priceFRB, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property and (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed ii) such deposit account is not intended by the Company or a Restricted any Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to provide collateral to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3depository institution.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, property taxes and assessments or other governmental charges which are not yet due or levies and payable Liens securing claims or the demands of mechanics and materialmen, provided payment of which thereof is not at the time required by Section 4.139.4;
(b) Liens incidental to the normal conduct of business of the Company or any attachment Restricted Subsidiary or judgment Liento secure claims for labor, unless materials or supplies in respect of obligations not overdue or in connection with the judgment it secures shall notownership of its property (including Liens in connection with worker's compensation, within 30 days after unemployment insurance and other like laws, warehousemen's and attorney's liens and statutory landlords' liens) which are not incurred in connection with the entry thereofincurrence of Debt or the borrowing of money and which do not in the aggregate Materially impair the use of such property in the operation of the business of the Company and its Restricted Subsidiaries, have been discharged or execution thereof stayed pending appealtaken as a whole, or shall not have been discharged within 30 days after the expiration value of any such stay (or property for the purpose of such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)business;
(c) statutory Liens created by or resulting from any litigation or legal proceeding which is currently being contested in good faith by appropriate proceedings or which result from a final, nonappealable judgment which is satisfied, or whose satisfaction is assured by the posting of landlords a bond or other collateral, within 60 days after such judgment becomes final and nonappealable;
(d) Liens of carriers, warehousemen, mechanicsmechanics and materialmen, materialmen and other similar like Liens, in each case, incurred existence less than 60 days (or in the ordinary course case of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed with respect to which the underlying claim shall currently be contested by ERISAthe Company or such Restricted Subsidiary in good faith by appropriate proceedings, the period of time during which such Lien is being contested) incurred from the date of creation thereof in respect of obligations not overdue or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters the release of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertysuch Liens;
(e) Liens securing Debt of a Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(f) Liens existing on as of the date of Closing and reflected in Schedule 10.5;
(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 the First Amendment and securing use of real properties, which are necessary for the Debt conduct of the activities of the Company and its Restricted Subsidiaries referred to or which customarily exist on real properties of corporations engaged in Exhibit B to similar activities and similarly situated and which do not in any event Materially detract from the First Amendmentvalue of such real property;
(fh) leases or subleases granted to any Lien created to secure all Person by the Company or any part Restricted Subsidiary, as lessor or sublessor, on any property owned or leased by the Company or any Restricted Subsidiary, provided that in each case such lease or sublease shall not Materially detract from the value of the purchase price, property leased or to secure Debt subleased;
(i) Liens incurred or assumed to pay all or after the date of Closing and existing on property of any part business entity at the time of the purchase price or cost acquisition of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed such business entity by the Company or a Restricted Subsidiary after the date Subsidiary, so long as such Liens were not incurred, extended or renewed in contemplation of the First Amendmentacquisition of such business entity, provided that
that (i) any such the Lien shall extend attach solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms property of the instrument originally creating such Lienbusiness entity so acquired, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) at the principal time of acquisition of such business entity, the aggregate amount of the remaining unpaid on all Debt secured by any Liens on the property of such Lien business entity, whether or not assumed by the Company or a Restricted Subsidiary, shall at no time not exceed an amount equal to the lesser of (A) the cost to the Company total purchase price or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value at the time of acquisition of such business entity (as determined in good faith by the board Board of directors Directors of the Company) of such Property (Company or improvement thereon) at any Restricted Subsidiary, as the time of such acquisition or constructioncase may be), and
and (iii) any the aggregate principal amount of all Debt secured by such Lien Liens shall be created contemporaneously permitted by the limitations set forth in Sections 10.3 and 10.4;
(j) Liens incurred after the date of Closing given to secure the payment of the purchase price incurred in connection with the acquisition or construction of property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such Propertyproperty at the time of acquisition or construction thereof, or Liens incurred within 180 days of such acquisition or the completion of such construction, provided that (i) the Lien shall attach solely to the property acquired, purchased or constructed, (ii) at the time of acquisition or construction of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by the Company or a Restricted Subsidiary, shall not exceed an amount equal to the lesser of the total purchase price or fair market value at the time of acquisition or construction of such property (as determined in good faith by the Board of Directors of the Company or any Restricted Subsidiary, as the case may be), and (iii) the aggregate principal amount of all Debt secured by such Liens shall be permitted by the limitations set forth in Sections 10.3 and 10.4;
(k) any extensions, renewals or replacements of any Lien permitted by the preceding subparagraphs (a) through (j) inclusive, of this Section 10.5, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt secured thereby shall not be increased on or after the date of any extension, renewal or replacement, (iii) the weighted average life to maturity of the Debt secured by such Liens shall not be reduced, and (iv) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; and
(gl) in addition to the Liens permitted by the preceding clauses subparagraphs (a) through (fk), inclusive, of this Section 4.410.5, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 Sections 10.3 and 4.310.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will not nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or any income offer or profits therefromagree to do so, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13created under this Agreement;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable or the payment of which is not at the time required by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred on the property of the Company or any of its Subsidiaries incurred, or pledges or deposits made required, in connection with workmen's compensation, unemployment insurance and other social security legislation;
(d) Liens securing taxes that remain payable without penalty or which are being contested in good faith by appropriate proceedings where collection thereof is stayed; provided that the Company has set aside on its books reserves with respect to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate;
(e) Purchase money security interests on any property acquired or held by the Company in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not securing Indebtedness incurred or made in connection with assumed for the borrowing purpose of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
(i) that any such Lien shall extend solely attaches to such property concurrently with or within 90 days -43- 48 after the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) acquisition thereof and provided that the principal amount of the Debt Indebtedness secured by any such Lien purchase money security interests shall at no time not in the aggregate exceed an amount equal to 2.5% of the lesser Consolidated Capitalization of (A) the cost to the Company and its Subsidiaries;
(f) Any right which any municipal or such Restricted Subsidiary governmental body or agency may have by virtue of any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any property of the Property (Company upon payment of reasonable compensation therefor or improvement thereon) so acquired to terminate any franchise, license or constructed other rights or to regulate the property and (B) the fair market value (as determined in good faith by the board of directors business of the Company;
(g) Any liens, neither assumed by the Company nor on which it customarily pays interest, existing upon real estate or rights in or relating to real estate acquired by the Company for sub-station, measuring station, regulating station, gas purification station, compressor station, transmission line, distribution line or right-of-way purposes;
(h) Easements or reservations in any property of the Company for the purpose of roads, pipe lines, gas transmission and distribution lines, electric light and power transmission and distribution lines, water mains and other like purposes, and zoning ordinances, regulations and restrictions which do not impair the use of such Property (or improvement thereon) at property in the time operation of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction business of such Propertythe Company; and
(gi) in addition to the Liens not otherwise permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.47.1 if at the time of, Liens on Property (other than accounts receivable and after giving effect to, the creation or inventory assumption of any Company) securing Priority Debt such Lien, the aggregate of all obligations of the Company or secured by any Restricted Subsidiary, provided that such Priority Debt shall be Liens not otherwise permitted by hereby does not exceed 5% of the applicable limitations set forth in Section 4.2 Consolidated Capitalization of the Company and 4.3its Subsidiaries.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly create or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency be incurred or otherwise) to exist, any Lien on its or with respect to any Property their property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or upon any income or profits rofits therefrom, or assign transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or otherwise convey their general creditors, or acquire or agree to acquire, or permit any right Subsidiary to receive income acquire, any property or profitsassets upon conditional sales agreements or other title retention devices, except:
(a) Liens for taxes, assessments or other governmental charges or levies which are not yet due and payable or the payment of which is not at the time required by Section 4.13;
9.4; (b) Liens created by or resulting from any attachment litigation, legal proceeding, judgment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, the time for or petition for rehearing of which shall not have been discharged within 30 days after the expiration of any such stay (expired or such lesser period of time as applicable law allows a judgment creditor which are being actively contested in good faith by appropriate proceedings and with respect to levy on such judgment);
(c) which adequate reserves are being maintained in accordance with GAAP; statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
9.4; (d) Liens (other than any Lien imposed by ERISA) incurred leases or deposits made in the ordinary course of business (i) in connection with workers' compensationsubleases granted to others, unemployment insurance and other types of social security or retirement benefitseasements, or (ii) to secure (or to obtain letters of credit that secure) the performance of tendersrights-of-way, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts restrictions and other similar obligationscharges or encumbrances, in each case incidental to, and not interfering with, the ordinary conduct of the business of the Company or any of its Subsidiaries, provided that such Liens do not, in the aggregate, detract in any Material respect from the value of such property; (e) other Liens incidental to the normal conduct of the business of the Company or any Subsidiary or the ownership of its property which are not incurred or made in connection with the borrowing of moneymoney and which do not in the aggregate materially impair the use of such property in the operation of the business of the Company or any Subsidiary or materially impair the value of such property for the purposes of such business, the obtaining of advances including, but not limited to: (i) pledges or credit or the deposits made to secure payment of obligations in connection 32 with workers compensation insurance, unemployment insurance, pensions or social security programs; and (ii) Liens arising from good faith deposits in connection with or to secure performance of statutory obligations and surety and appeal bonds; (f) Liens on property of the deferred purchase price Company or any of Property;
its Subsidiaries securing Debt owing to the Company or to any of its Wholly-owned Subsidiaries; (eg) Liens existing on the date of this Agreement and reflected on Schedule 10.3; provided, however, that any Lien incurred pursuant to and within the First Amendment limitations of Section 10.3(m) shall have been discharged on or prior to October 18, 2001 and securing any Lien on any such stock of a Foreign Significant Subsidiary thereafter shall only have been incurred pursuant to and within the Debt limitations of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
Section 10.3(n); (fh) any Lien renewing, extending, replacing, refinancing or refunding any Lien permitted by paragraph (g) of this Section 10.3, provided that (i) the principal amount of Debt secured by such Lien immediately prior to such extension, renewal, replacement, refinancing or refunding is not increased or the maturity thereof reduced, (ii) such Lien is not extended to any other property, and (iii) immediately after such extension, renewal, replacement, refinancing or refunding no Default or Event of Default would exist; and provided further that any Lien incurred pursuant to and within the limitations of Section 10.3(m) may not be renewed, extended, replaced or refinanced pursuant to and within the limitations of this Section 10.3(h); (i) any Lien on property or equipment created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property such property or equipment (other than accounts receivable or inventory), or any improvement thereon, thereon or thereto) acquired or constructed by the Company or a Restricted Subsidiary after the date of the First AmendmentClosing, provided that
that (i1) any such Lien shall extend solely to the item or items of such Property property or equipment (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property property or equipment (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property or equipment (or improvement thereon) or which is real Property property or equipment being improved by such acquired or constructed Property property and equipment (or improvement thereon),
, (ii2) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser Fair Market Value (as determined in good faith by the 33 board of (A) the cost to the Company or such Restricted Subsidiary directors of the Property Company) of such property or equipment (or improvement thereon) at the time of such acquisition or construction, and (3) any such Lien shall be created contemporaneously with, or within 180 days after, the acquisition or completion of construction of such property or equipment; (j) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or constructed not the Debt secured thereby shall have been assumed), provided that (i) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person's becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property and (Biii) the fair market value principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the Fair Market Value (as determined in good faith by the board of directors of the Company) of such Property property (or such improvement thereon) at the time of such acquisition; (k) inchoate Liens on any property of KEMET de Mexico, S.A. de C.V. securing customs claims of Mexico arising as a result of such property being sold or otherwise disposed of in Mexico, provided that payment thereof is not at the time required by Section 9.4; (l) Liens on Margin Stock; provided that any Debt secured by any such Lien shall have been created, issued, assumed, guaranteed or otherwise incurred by the Company for the purpose of repurchase or other acquisition or construction, and
(iii) of its publicly traded common stock and any such Lien shall be created contemporaneously with within the acquisition applicable provisions of Regulation T, U or construction X, as the case may be, of such Propertythe Board of Governors of the Federal Reserve System; and
(gm) in addition Liens consisting of the pledge of stock of any Foreign Significant Subsidiary by the Company to the Banks as security for the Bank Debt pursuant to the Bank Credit Agreement, provided that any such Lien shall have been discharged on or prior to October 18, 2001 and any Lien consisting of a pledge of stock of any Foreign Significant Subsidiary created or existing after October 18, 2001 shall have been created or incurred within the limitations of Section 10.3(n); and (n) other Liens not otherwise permitted by the preceding clauses paragraphs (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Companym) securing Priority Funded Debt of the Company or any Restricted 34 Subsidiary, provided that all Funded Debt secured by such Priority Debt Liens shall be permitted by have been incurred pursuant to and within the applicable limitations set forth provided in Section 4.2 Sections 10.2(a)(iii)(1) and 4.3(2). .c2.
Appears in 1 contract
Samples: Note Purchase Agreement (Kemet Corp)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date securing Indebtedness of the First Amendment and securing the Debt of a Subsidiary to the Company and its Restricted Subsidiaries referred or to in Exhibit B to the First Amendmenta Subsidiary;
(f) any Lien created Liens existing as of the Closing Date and reflected in Schedule 10.4;
(g) Liens incurred after the Closing Date given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary, shall not exceed the cost of such acquisition, construction or improvement and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default would exist;
(iiii) any such extensions, renewals or replacements of any Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through subparagraphs (f), inclusive, (g) and (h) of this Section 4.410.4, Liens provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased on Property (other than accounts receivable or inventory after the date of any Companyextension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(j) Liens securing Priority Debt Indebtedness of the Company or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt Indebtedness shall be permitted by Section 10.3, and, provided further that, no such Liens may secure any obligations under the applicable limitations set forth in Section 4.2 and 4.3Bank Credit Agreement.
Appears in 1 contract
Limitation on Liens. The Company will notCreate or suffer to exist, and will not or permit any Subsidiary of its Restricted Subsidiaries toeither Borrower to create or suffer to exist, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on upon any of their respective Properties, incomes or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryprofits, whether now owned or held or hereafter acquired, or except: (i) Liens at any income or profits therefromtime granted in favor of Agent, or assign or otherwise convey any right to receive income or profits, except:
for its benefit and the ratable benefit of Lenders; (aii) Liens for taxes, assessments or other governmental charges which are taxes (excluding any Lien imposed pursuant to any of the provisions of ERISA) not yet due or which are being contested as permitted by Section 9.1(A) hereof other than any Lien which would, as a matter of law, exist notwithstanding such contest and payable late payment, but only if in Agent's judgment such Lien does not affect adversely Agent's or Lenders' rights or the payment priority of which is not at Agent's Lien in Collateral; (iii) Liens securing the time required by Section 4.13;
(b) any attachment claims or judgment Liendemands of materialmen, unless the judgment it secures shall notmechanics, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen landlords and other similar Lienslike Persons for labor, in each casematerials, supplies or rentals incurred in the ordinary course of business for sums not yet due and payable or Borrowers' business, but only if the payment of which thereof is not at the time required by Section 4.13;
required; (div) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' workmen's compensation, unemployment insurance insurance, social security and other types of social security or retirement benefitslike laws; (v) attachment, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts judgment and other similar obligations, in each case not incurred or made non-tax Liens arising in connection with court proceedings, but only if and for so long as the borrowing execution or other enforcement of moneysuch Liens is and continues to be effectively stayed and bonded on appeal, the obtaining of advances or credit or the payment validity and amount of the deferred purchase price of Property;
(e) claims secured thereby are being actively contested in good faith and by appropriate lawful proceedings and such Liens existing on do not, in the date aggregate, materially detract from the value of the First Amendment Properties of Borrowers or materially impair the use thereof in the operation of Borrowers' businesses; (vi) Purchase Money Liens securing Permitted Purchase Money Indebtedness; (vii) reservations, exceptions, easements, rights of way, and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendmentsimilar encumbrances affecting real Property, provided that
(i) any such Lien shall extend solely to , in Agent's sole judgment, they do not in the item aggregate materially detract from the value of said Properties or items materially interfere with their use in the ordinary conduct of such Property (or improvement thereon) so acquired or constructed Borrowers' businesses and, if required by the terms said real Property constitutes Collateral, such Liens existed as of the instrument originally creating Closing Date or Agent has consented thereto; (viii) such Lien, other Property Liens as appear on Schedule 9.2(H) attached hereto; or (or improvement thereonix) which is an improvement to or is acquired for specific use such other Liens as Required Lenders may hereafter approve in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3writing.
Appears in 1 contract
Samples: Loan and Security Agreement (Factory Card Outlet Corp)
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, create, incur, assume affirm or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on of any kind upon any of its property or with respect to assets (including any Property or asset (includingintercompany notes), without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquiredacquired after the date of this Supplemental Indenture, or any income or profits therefrom, except if the Notes are directly secured equally and ratably with (or assign prior to in the case of Liens with respect to Subordinated Indebtedness) the obligation or otherwise convey liability secured by such Lien, excluding, however, from the operation of the foregoing any right to receive income or profits, exceptof the following:
(a) Liens for taxes, assessments or other governmental charges which are not yet due any Lien existing as of the date of this Supplemental Indenture and payable or the payment of which is not at the time required by Section 4.13listed on Schedule II hereto;
(b) any attachment Lien arising by reason of (i) any judgment, decree or judgment Lienorder of any court, unless the judgment it secures shall not, within 30 days after the entry thereof, so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been discharged duly initiated for the review of such judgment, decree or execution thereof stayed pending appeal, or order shall not have been discharged finally terminated or the period within 30 days after which such proceedings may be initiated shall not have expired; (ii) taxes not yet delinquent or which are being contested in good faith; (iii) security for payment of workers' compensation or other insurance; (iv) good faith deposits in connection with tenders, leases, contracts (other than contracts for the expiration payment of money); (v) zoning restrictions, easements, licenses, reservations, provisions, covenants, conditions, waivers, restrictions on the use of property or minor irregularities of title (and with respect to leasehold interests, mortgages, obligations, liens and other encumbrances incurred, created, assumed or permitted to exist and arising by, through or under a landlord or owner of the leased property, with or without consent of the lessee), none of which materially impairs the use of any parcel of property material to the operation of the business of the Company or any Subsidiary or the value of such stay property for the purpose of such business; (vi) deposits to secure public or such lesser period statutory obligations, or in lieu of time as applicable law allows a judgment creditor to levy on such judgment);
surety or appeal bonds; (cvii) statutory Liens surveys, exceptions, title defects, encumbrances, reservations of, or rights of landlords and Liens others for, rights of carriersway, warehousemensewers, mechanicselectric lines, materialmen telegraph or telephone lines and other similar Lienspurposes or zoning or other restrictions as to the use of real property not interfering with the ordinary conduct of the business of the Company or any of its Subsidiaries; or (viii) operation of law in favor of mechanics, in each casematerialmen, laborers, employees or suppliers, incurred in the ordinary course of business for sums which are not yet due delinquent or are being contested in good faith by negotiations or by appropriate proceedings which suspend the collection thereof;
(c) any Lien now or hereafter existing on property of the Company or any of its Restricted Subsidiaries securing Senior Indebtedness or Guarantor Senior Indebtedness, in each case which Indebtedness is permitted under the provisions of Section 1008 and payable or provided that the payment provisions of which is not at the time required by Section 4.131014 are complied with;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business securing Acquired Indebtedness created prior to (i) and not created in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that securein contemplation of) the performance incurrence of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction such Indebtedness by the Company or sales contracts and other similar obligationsany Subsidiary, in each case not incurred which Indebtedness is permitted under the provisions of Section 1008; provided that any such Lien only extends to the assets that were subject to such Lien securing such Acquired Indebtedness prior to the related transaction by the Company or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertyits Subsidiaries;
(e) Liens existing on the date of the First Amendment and any Lien securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;Permitted Subsidiary Indebtedness; and
(f) any Lien created to secure all extension, renewal, refinancing or any part of the purchase pricereplacement, in whole or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of constructionin part, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by Lien described in the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding foregoing clauses (a) through (f), inclusive, e) so long as the amount of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3security is not increased thereby.
Appears in 1 contract
Samples: First Supplemental Indenture (Sinclair Broadcast Group Inc)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxessecuring Indebtedness permitted by Section 6.1(a), assessments or other governmental charges which are (e) and (f); provided, that, in the case of Liens securing Indebtedness permitted by Section 6.1(f) such Liens shall not yet due encumber any property not financed by such Indebtedness, and payable or in the payment case of which is any Liens permitted by Section 6.1(e), such Liens shall not encumber any property not encumbered by such Lien at the time required it was created, such Liens existed at the time such Person became a Subsidiary and were not created in anticipation of the acquisition, and any such Lien does not by Section 4.13its terms secure any Indebtedness other than Indebtedness existing immediately prior to the time such Person becomes a Subsidiary;
(b) any attachment Liens for taxes not yet due or judgment Lienwhich are being contested in good faith by appropriate proceedings, unless provided that adequate reserves with respect thereto are maintained on the judgment it secures shall notbooks of the relevant Person constituting the Borrower or its Subsidiaries, within 30 days after as the entry thereofcase may be, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)in conformity with GAAP;
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's, landlords' or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which secure amounts not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(d) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iie) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentbusiness;
(f) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any Lien created to secure all or any part case materially detract from the value of the purchase price, property subject thereto or to secure Debt incurred or assumed to pay all or any part materially interfere with the ordinary conduct of the purchase price business of the relevant Person constituting the Borrower or cost of constructionsuch Subsidiary;
(g) Liens listed on Schedule VIII, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary provided that no such Lien is amended after the date of the First Amendment, provided that
(i) this Agreement to cover any such Lien shall extend solely additional property or to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertysecure additional Indebtedness; and
(gh) Liens granted to secure Indebtedness evidenced by the Senior Notes, provided payment of the Obligations is equally and ratably secured by such Liens and such Liens (in addition favor of the holders of the Senior Notes and the Lenders) are effected pursuant to security documentation from Borrower and/or any Subsidiary granting such Lien and the holders of the Senior Notes in form and substance reasonably satisfactory to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Required Lenders.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries permit\ the Trust or\ any\ other Restricted\ Subsidiary to, directly create or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency be incurred or otherwise) to exist, any Lien on its or with respect to any Property their property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or upon any income or profits therefrom, or assign transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or otherwise convey their general creditors, or acquire or agree to acquire, or permit\ the Trust or\ any\ other Restricted\ Subsidiary to acquire, any right to receive income property or profitsassets upon conditional sales agreements or other title retention devices, except:except the following (collectively, the “Permitted Liens”):
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or delinquent, or the payment validity of which is not at the time required by Section 4.13\Trust\Company or any\ Restricted\ Subsidiary shall be contesting in good faith, provided that any such contest will involve no risk of loss of any Material part of the property of the \Trust\Company and the\ Restricted\ Subsidiaries taken as a whole;
(b) Liens of any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appealjudgments rendered, or claim filed, against the \Trust\Company or any\ Restricted\ Subsidiary which the \Trust\Company or any such\ Restricted\ Subsidiary shall not have been discharged within 30 days after the expiration be contesting in good faith, provided that any such contest will involve no risk of loss of any such stay (or such lesser period Material part of time the property of the \Trust\Company and the\ Restricted\ Subsidiaries taken as applicable law allows a judgment creditor to levy on such judgment)whole;
(c) statutory Liens of landlords and Liens of imposed or permitted by law, such as carriers’ liens, warehousemenbuilders’ liens, mechanics, materialmen materialmen’s liens and other liens, privileges or other charges of a similar Liens, in each case, nature incurred in the ordinary course of business for sums of the \Trust\Company or any\ Restricted\ Subsidiary which relate to obligations not yet due or delinquent or, if due or delinquent, which Lien the \Trust\Company and/or such\ Restricted\ Subsidiary shall be contesting in good faith, provided that any such contest will involve no risk of loss of any Material part of the property of the \Trust\Company and payable or the payment of which is not at the time required by Section 4.13its\ Restricted\ Subsidiaries taken as a whole;
(d) undetermined or inchoate Liens arising in the ordinary course of and incidental to construction or current operations and in accordance with sound oil and gas industry practice in the jurisdiction in which the business is being conducted and not in connection with the borrowing of money and which, in any event, have not been filed pursuant to law against the \Trust\Company or any\ Restricted\ Subsidiary or any of their respective properties or in respect of which no steps or proceedings to enforce such Liens have been initiated or which relate to obligations which are not due or delinquent or, if due or delinquent, are being contested in good faith by the \ Trust\Company or such\ Restricted\ Subsidiary; provided that any such contest will involve no risk of loss of any Material part of the property of the \Trust\Company and the\ Restricted\ Subsidiaries taken as a whole;
(other than any Lien imposed by ERISAe) Liens incurred or deposits made created in the ordinary course of business (i) and in connection accordance with workers' compensationsound oil and gas industry practice in the jurisdiction in which the business is being conducted in respect of the joint operation of oil and gas properties or related production or processing facilities as security in favor of any other Person conducting the development or operation of the property to which such Liens relate, unemployment insurance for the \Trust\Company’s or any \Restricted \Subsidiary’s portion of the costs and other types expenses of social security such development or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationsoperation but not, in each case not incurred or made any event, in connection with the borrowing of money; provided that such costs or expenses are not in any event due or delinquent or, if due or delinquent, are being contested in good faith by the obtaining \Trust\Company or such\ Restricted\ Subsidiary or such contest will involve no risk of advances or credit or the payment loss of any Material part of the deferred purchase price of Property;
(e) Liens existing on the date property of the First Amendment \Trust\Company and securing the Debt of the Company and its Restricted its\ Restricted\ Subsidiaries referred to in Exhibit B to the First Amendmenttaken as a whole;
(f) any Lien created to secure all overriding royalty interests, net profit interests, reversionary interests and carried interests or other similar burdens on petroleum substance production in respect of the \Trust\Company’s or any \Restricted \Subsidiary’s oil and gas properties that are entered into with or granted on an arm’s length basis to third parties in the ordinary course of business in compliance with Section 10.7 and for the purpose of carrying on the same and in accordance with sound oil and gas industry practice in the jurisdiction in which the business is being conducted, but not, in any event, in connection with the borrowing of money;
(g) Liens for penalties arising under ordinary course non-participation provisions of operating agreements in respect of the \Trust\Company’s or any\ Restricted\ Subsidiary’s oil and gas properties, which either alone or in the aggregate do not materially detract from the value of any Material part of the purchase priceproperty of the \Trust\Company and its \Restricted \Subsidiaries taken as a whole;
(h) easements, rights-of-way, servitudes, zoning or to secure Debt incurred other similar rights or assumed to pay all restrictions in respect of land held by the \Trust\Company or any\ Restricted\ Subsidiary (including, without limitation, rights-of-way and servitudes for railways, sewers, drains, pipe lines, gas and water mains, electric light and power and telephone or telegraph or cable television conduits, poles, wires and cables) which, either alone or in the aggregate, do not Materially detract from the value of such land or impair in a Material way its use in the operation of the business of the \Trust\Company and the \Restricted \Subsidiaries taken as a whole;
(i) Liens arising in connection with workers’ compensation, \unemployment\employment insurance, pension and employment laws or regulations and not in connection with the borrowing of money; provided that (i) the obligations secured are not due or delinquent or, if due or delinquent, are being contested in good faith and (ii) any such contest will involve no risk of loss of any Material part of the property of the \Trust\Company and its \Restricted \Subsidiaries taken as a whole;
(j) Liens in favor of a public utility or any municipality or governmental or other public authority when required by such public utility or municipality or other \governmental authority\Governmental Authority in the ordinary course of the business operations of the \Trust\Company and the\ Restricted\ Subsidiaries; provided that any such Lien does not, either alone or in the aggregate, impair in a Material way the use of any property subject to such security interest in the conduct of the business of the \Trust\Company and the\ Restricted\ Subsidiaries taken as a whole;
(k) the right reserved to or vested in any governmental body by the terms of any lease, license, grant or permit or by any statutory or regulatory provision to terminate any such lease, license, grant or permit or to require annual or other periodic payments as a condition of the continuance thereof;
(l) all reservations in the original grant from the Crown of any lands and premises or any interests therein and all statutory exceptions, qualifications and reservations in respect of title;
(m) Liens created or incurred in favour of a third party under any joint venture agreement, partnership agreement, operating agreement or similar agreement affecting the property which is the subject of such agreement, provided that (i) such agreement is entered into in the ordinary course of its business, on arms’ length commercial terms, not in connection with the borrowing of money and otherwise in accordance with industry practice, (ii) reciprocal Liens or equivalent remedies are provided by the other parties to such agreement for the benefit of the \Trust\Company or any \Restricted \Subsidiary in circumstances where the creditworthiness of such other parties is essentially equivalent to or less than that of the \Trust or the \Company or such Subsidiary, as applicable, and (iii) the Liens have not become the subject of realization actions under \applicable law\Applicable Law, or if they have: (1) such realization actions are being contested by the \Trust\Company or a\ Restricted\ Subsidiary, as applicable, diligently and in good faith by appropriate proceedings, and (2) the final outcome of any such realization action could not reasonably be expected to have a Material Adverse Effect;
(n) Liens securing \Non-Recourse Debt\Subordinated Debt to the extent permitted by clause (b)(ii) of the definition of “Subordinated Debt”;
(o) Liens securing \Debt of the Trust or a Restricted Subsidiary to the Trust or another Wholly-owned Restricted Subsidiary;\Swap Contracts in the ordinary course of business and not for speculative purposes;
(p) Liens existing as of the \date of the Closing\Second Amendment Effective Date and described on Schedule \5.15\10.4;
(q) Liens created or incurred after the date of the Closing given to secure the payment of the purchase price incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the business of the \Trust\Company or a\ Restricted\ Subsidiary, including Liens existing on such property or assets at the time of acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to secure the payment of the acquisition or purchase price or cost of construction, as the case may be, of Property the property or assets to which they attach; provided that (other than accounts receivable i) the Lien shall attach solely to the property or inventory)assets acquired, purchased or any improvement thereonconstructed, acquired (ii) such Lien shall have been created or constructed by the Company or a Restricted Subsidiary after incurred within 180 days of the date of acquisition or purchase or completion of construction, as the First Amendmentcase may be, provided that
(iiii) any such Lien shall extend solely to at the item time of acquisition or items purchase or of completion of construction of such Property (property or improvement thereon) so acquired or constructed andassets, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal aggregate amount of the remaining unpaid on all Debt secured by any Liens on such Lien property or assets, whether or not assumed by the \Trust\ Company or a\ Restricted\ Subsidiary, shall at no time not exceed an amount equal to 100% of the lesser of (A) the cost to the Company total purchase price or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value at the time of acquisition or purchase (as determined in good faith by the board Board of directors Directors of the Company) or the cost of such Property construction on the date of completion thereof, and (or improvement thereoniv) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such acquisition Lien and after giving effect thereto and to the application of the proceeds thereof, no Default or constructionEvent of Default would exist (including, andwithout limitation, \under Sections 10.1, 10.2 and\an Event of Default arising from a breach of Section 10.1 or Section 10.3, with any calculation of compliance therewith to be made \as at the date of determination hereunder\on a Pro Forma Basis);
(iiir) any Lien existing on property or assets of a Person at the time such Person is consolidated, merged or amalgamated with or into the \Trust\Company or a \Restricted \Subsidiary or\ (subject always to Section 9.8(d))\ its becoming a \Restricted \Subsidiary, or any Lien existing on any property or assets acquired by the \Trust\Company or any\ Restricted\ Subsidiary at the time such property or assets are so acquired (whether or not the Debt secured thereby shall have been assumed), provided that (i) each such Lien shall extend solely to the property or assets so acquired, (ii) any such Lien shall be not have been created contemporaneously with the acquisition or construction assumed in contemplation of such Property; andconsolidation, amalgamation, merger or acquisition, and (iii) at the time of \creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien\such consolidation, amalgamation, merger or acquisition, and after giving effect thereto and to the application of the proceeds \thereof\of Debt secured by any such Lien, if any, no Default or Event of Default would exist (including, without limitation, \under Sections 10.1, 10.2 and\ an Event of Default arising from a breach of Section 10.1 or Section 10.3, with any calculation of compliance therewith to be made \as at the date of determination hereunder\on a Pro Forma Basis);
(gs) Liens \created or incurred after the date of the Closing given to secure Debt of the Trust or any Restricted Subsidiary in addition to the Liens permitted by the preceding clauses (a) through (fp), inclusive, (q) and (r) of this Section 4.410.4; provided that (i) all Debt secured by such Liens shall have been incurred within the limitations provided in Section 10.3(b) and (ii) after giving effect thereto and to the application of the proceeds thereof, Liens on Property no Default or Event of Default would exist (other than accounts receivable or inventory including, without limitation, under Sections 10.1, 10.2 and 10.3, with any calculation of compliance therewith to be made as at the date of determination hereunder); and provided, further, that, notwithstanding the foregoing, in the event that at any Company) securing Priority Debt of time the Company or any Restricted SubsidiarySubsidiary provides a Lien to or for the benefit of the lenders under any of the Bank Facilities or any Bank Agent on their behalf, or the holders of notes issued under any Existing Private Placement Note Agreement then the Company will, and will cause each of its Restricted Subsidiaries that has provided any such Lien to concurrently grant to and for the benefit of the holders of the Notes a similar first priority Lien (subject only to Liens otherwise permitted by this Section 10.4, and ranking pari passu with the Lien provided to or for the benefit of the lenders and/or any Bank Agent, as the case may be, under any of the Bank Facilities or the holders of the Notes issued under any Existing Private Placement Note Agreement), over the same assets, property and undertaking of the Company and such Restricted Subsidiary as those encumbered in respect of any of the Bank Facilities or Existing Private Placement Note Agreement, in form and substance reasonably satisfactory to the Required Holders with such security to be the subject of an intercreditor agreement among the lenders and/or the Bank Agent, as the case may be, under any such Bank Facility or Facilities, the holders of notes issued under any Existing Private Placement Note Agreement and the holders of Notes, which shall be reasonably satisfactory in form and substance to the Required Holders; and\granted to the Collateral Agent under the Security Documents to secure the Senior Pro Rata Debt; and
(t) any extension, renewal or refunding of any Lien permitted by the preceding clauses (p), (q) or (r) of this Section 10.4 in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refunding of the Debt secured thereby; provided that (i) such Priority extension, renewal or refunding of Debt shall be permitted by without increase in the applicable limitations set forth in principal amount remaining unpaid as of the date of such extension, renewal or refunding, (ii) such Lien shall attach solely to the same such property, (iii) the maturity date of the Debt to be so extended, renewed or refunded shall not be reduced or shortened, and (iv) at the time of such extension, renewal or refunding and after giving effect thereto, no Default or Event of Default would exist (including, without limitation, \under Sections 10.1, 10.2 and\an Event of Default arising from a breach of Section 4.2 and 4.310.1 or Section 10.3, with any calculation of compliance therewith to be made \as at the date of determination hereunder\on a Pro Forma Basis).
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to agreements, including, without limitation, an intercreditor agreement, reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.13;
9.4; (b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation but not Liens imposed by ERISA), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money; (d) licenses, leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Property;
the Company or any Restricted Subsidiary, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property; (e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a Wholly-Owned Restricted Subsidiary; (f) Liens existing on the date of this Agreement and reflected in Schedule 10.4; -33- (g) Liens incurred after the First Amendment date of this Agreement (including Liens incurred in connection with Capitalized Leases and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(fOff-Balance Sheet Obligations) any Lien created given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or not assumed by the Company or a Subsidiary, shall not exceed the lesser of (i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value of such property (as determined in good faith by one or more officers of the Company to whom authority to enter into the transaction has been delegated by the board of directors of the Company), (3) the aggregate principal amount of Indebtedness secured by such Liens would be permitted by the limitation set forth in Section 10.2 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (h) any improvement thereon, acquired Lien existing on property of a Person immediately prior to its being consolidated with or constructed by merged into the Company or a Restricted Subsidiary after or its becoming a Subsidiary, or any Lien existing on any property acquired by the date of Company or any Restricted Subsidiary at the First Amendmenttime such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i1) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the Debt Indebtedness secured by any such Lien shall at no time exceed an amount equal to Liens would be permitted by the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed limitation set forth in Section 10.2 and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon4) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, and
Event of Default shall have occurred and be continuing; (iiii) any such Lien shall be created contemporaneously with the acquisition interest or construction title of such Property; and
(g) in addition to the Liens permitted a lessor under any operating lease entered into by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by as lessee, in the applicable limitations set forth in Section 4.2 ordinary course of business and 4.3.covering only the assets so leased; (
Appears in 1 contract
Samples: Note Purchase Agreement
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Subsidiary to the Company and its Restricted Subsidiaries referred or to in Exhibit B to the First Amendmenta Subsidiary;
(f) any Lien created Liens existing as of the Closing Date and reflected in Schedule 10.3;
(g) Liens incurred after the Closing Date given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed the date lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of the First AmendmentCompany to whom authority to enter into the transaction has been delegated by the board of directors of the Company); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(i) any extensions, and
renewals or replacements of any Lien permitted by the preceding subparagraphs (f), (g) and (h) of this Section 10.3, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) any at such Lien time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be created contemporaneously with the acquisition or construction of such Propertycontinuing; and
(gj) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, excluding Debt otherwise described in clauses (a) - (i) of this Section 10.3, not to exceed the greater of $50,000,000 or 10% of Consolidated Net Worth, determined as of the end of the then most recently ended fiscal quarter of the Company, provided that such Priority Debt no Lien pursuant to this Section 10.3(j) shall be permitted by secure the applicable limitations set forth in Section 4.2 Bank Credit Agreement or related Guaranties unless the Notes are also secured equally and 4.3ratably pursuant to an agreement reasonably satisfactory to the Required Holders.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset of its property, assets (including, without limitation, the capital stock of any document Subsidiary) or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable or which are being contested in good faith by appropriate proceedings, if any are required in the payment good faith judgment of which is not at the Borrower, provided that adequate reserves with respect thereto are maintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP (or, in the case of Subsidiaries organized under the laws of a foreign country, generally accepted accounting principles in effect from time required by Section 4.13to time in their respective jurisdictions of organization);
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or legislation;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances which, in the date aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the Company and business of the Borrower or any of its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(f) any Lien created to secure all or any part Liens securing Indebtedness of the purchase price, Borrower and its Subsidiaries permitted by subsection 10.2(d) incurred to finance the acquisition of fixed or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendmentcapital assets, provided that
that (i) any such Lien Liens shall extend solely to be created substantially simultaneously with the item or items acquisition of such Property fixed or capital assets, (or improvement thereonii) so acquired or constructed and, if required by such Liens do not at any time encumber any property other than the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved property financed by such acquired or constructed Property Indebtedness, (or improvement thereon),
iii) the amount of Indebtedness secured thereby is not increased at any time and (iiiv) the principal amount of the Debt Indebtedness secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary 100% of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) original purchase price of such Property (or improvement thereon) property at the time of such acquisition or construction, andit was acquired;
(iiig) Liens in favor of the Administrative Agent for the benefit of the Lenders created pursuant to the Security Documents and any liens created pursuant to subsection 9.7;
(h) [Intentionally omitted];
(i) [Intentionally omitted];
(j) Liens securing any Indebtedness permitted under subsection 10.2(i), provided that any such Lien Liens shall be created contemporaneously with not cover any Accounts or Inventory of the acquisition Borrower or construction any of such Propertyits Subsidiaries; and
(k) Liens on the stock and the assets of AG Holdings and/or RG Holdings securing Indebtedness of AG Holdings and/or RG Holdings permitted by subsection 10.2(j)(x). In no event shall the Borrower create, incur, assume or suffer to exist any Lien upon the Capital Stock of Audiovox Communications Corp. now owned or hereafter acquired by the Borrower, other than Liens in favor of the Administrative Agent for the benefit of the Lenders created pursuant to clause (g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3above.
Appears in 1 contract
Samples: Credit Agreement (Audiovox Corp)
Limitation on Liens. The Company will shall not, and will shall not suffer or ------------------- permit any of its Restricted Subsidiaries Material Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens"): ---------------
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Closing Date and set forth in Schedule 7.01 either (i) securing Indebtedness ------------- outstanding on such Restricted Subsidiary, whether now owned date or held or hereafter acquired, or any income or profits therefrom, or assign or (ii) which does not otherwise convey any right to receive income or profits, except:secure Indebtedness;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, levies, imposts, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.07, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens on the property of the Company or retirement benefits, or its Subsidiary securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business, provided all such Liens in the aggregate would not (other than Capitalized Leases)even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, performance bondsprovided that the enforcement of such Liens is effectively stayed and all such liens in the aggregate at any time outstanding for the Company and its Subsidiaries do not exceed $20,000,000;
(h) easements, purchaserights-of-way, construction zoning or sales contracts use restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fi) Liens on assets acquired by the Company or any Lien Subsidiary or on any assets of Persons which become Subsidiaries, in each case, which assets or Persons are acquired after the date of this Agreement, provided, however, that -------- ------- such Liens existed at the time such assets were acquired by the Company or any Subsidiary or such Persons became Subsidiaries and were not created to secure in anticipation thereof;
(j) purchase money security interests on any property acquired, constructed or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any -------- ---- such Lien shall extend attaches to such property concurrently with or within 30 days after the acquisition or construction thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all such purchase money security interests shall not at any time exceed $10,000,000;
(k) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(l) 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 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 Company in excess of those set forth by regulations promulgated by the FRB, and (ii) such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(m) Liens consisting of pledges of cash collateral or government securities to secure on a xxxx-to-market basis Permitted Swap Obligations only, provided that (i) the counterparty to any Swap Contract relating to any such Permitted Swap Obligation is under a similar requirement to deliver similar collateral from time to time to the Company or the Subsidiary party thereto on a xxxx-to-market basis; and (ii) the aggregate value of such collateral so pledged by the Company and the Subsidiaries together in favor of any counterparty does not at any time exceed $10,000,000.
(n) Liens securing Refinancing Indebtedness (as defined in subsection 7.05(f)) which was originally secured by a Lien permitted by this Section 7.01, provided that such Lien does not apply to any other property or assets of the -------- Company or any Subsidiary other than the proceeds of the property or assets subject to such Lien;
(o) Liens pursuant to Permitted Receivables Purchase Facilities permitted by the terms hereof;
(p) other non-consensual Liens arising in the ordinary course of business the existence or enforcement of which would not result in a Material Adverse Effect; and
(q) other Liens securing Indebtedness and obligations in an aggregate principal amount at any time outstanding not exceeding $5,000,000, provided that -------- any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property not encumber cash (other than accounts receivable or inventory of any Company) securing Priority Debt to the extent such cash constitutes proceeds of the Company property subject to any such Lien), inventory or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3accounts receivable.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13;appropriate proceedings; Arrow Electronics Credit Agreement
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with the securitization of Receivables; provided that (i) the aggregate net proceeds of any such securitization transaction shall not exceed $550,000,000 and (ii) any such securitization transaction shall be a Permitted Receivables Securitization;
(g) any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted 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 in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the First AmendmentCompany or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided thatthat (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt a bank account of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by Subsidiary arising in connection with the applicable limitations set forth cash pooling arrangements referred to in Section 4.2 11.3(c); and
(j) Liens (not otherwise permitted hereunder) which secure obligations not exceeding (as to the Company and 4.3all Domestic Subsidiaries) a Dollar Equivalent Amount equal $25,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens"):
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Effective Date and set forth in Schedule 8.01 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned date and any refinancing or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:refunding thereof;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.07, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due and delinquent or remain payable or the payment of which is not at the time required by Section 4.13without penalty;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefitslegislation;
(f) easements, or (ii) to secure (or to obtain letters of credit that secure) the performance of tendersrights-of-way, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fg) purchase money security interests on any Lien created to secure property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase pricecost of acquiring such property; provided that (i) any such Lien attaches to such property concurrently with or within 20 days after the acquisition thereof, or (ii) such Lien attaches solely to secure Debt incurred or assumed to pay all or any part the property so acquired in such transaction, (iii) the principal amount of the purchase price or Indebtedness secured thereby does not exceed 100% of the cost of constructionsuch property, and (iv) the aggregate principal amount of Property the Indebtedness secured by any and all such purchase money security interests together with the principal amount of any Indebtedness secured by Liens permitted under subsection (other than accounts receivable or inventory), or h) below shall not at any improvement thereon, time exceed $5,000,000;
(h) mortgage Liens on any real property acquired or constructed by the Company or a Restricted Subsidiary after its Subsidiaries subsequent to the date Effective Date in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the First Amendment, cost of acquiring or constructing such property; provided that
that (i) any such Lien shall extend attaches to such property concurrently with or within 90 days after such property is placed in service by the Company, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt Indebtedness secured by any thereby does not exceed 100% of the fair market value of such Lien shall at no time exceed an amount equal to the lesser of property, (Aiv) the cost such Indebtedness is without recourse to the Company or such Restricted Subsidiary any of the Property (or improvement thereon) so acquired or constructed its Subsidiaries and (Bv) the fair market value (as determined in good faith by the board aggregate amount of directors of the Company) of all such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously Indebtedness together with the acquisition or construction principal amount of such Property; and
any Indebtedness secured by Liens permitted under subsection (g) above does not exceed $5,000,000;
(i) Liens securing obligations in addition respect of Capital Leases, limited to the Liens assets subject to such leases, provided that such Capital Leases are otherwise permitted by the preceding clauses hereunder;
(aj) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory any property of any Company) HMO Texas, securing Priority Debt of the Kaiser Note; provided that such Indebtedness is without recourse to the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by of its Subsidiaries (other than HMO Texas to the applicable limitations extent set forth in the Kaiser Note);
(k) Liens securing letters of credit, each of which has an individual face amount less than $500,000 and the aggregate face amounts of which are less than $1,000,000; (l) Liens securing obligations of the Company to a Subsidiary permitted pursuant to Section 4.2 and 4.3.8.05(g);
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required securing Indebtedness permitted by Section 4.137.2(a);
(b) any attachment or judgment LienLiens (senior to the Lien granted hereunder in right of priority with respect to the Collateral) securing Indebtedness permitted by Section 7.2(b), unless so long as the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)Intercreditor Agreement remains in full force and effect;
(c) statutory intentionally omitted;
(d) intentionally omitted;
(e) Liens for taxes (i) which are not yet delinquent or (ii) which are, not in an aggregate amount, as to Company and all Subsidiaries, of landlords and Liens greater than $1,000,000 or (iii) which are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of Company or its Subsidiaries, as the case may be, in conformity with GAAP;
(f) carriers, warehousemen's, mechanics's, materialmen materialmen's, repairmen's or other like Liens arising in the ordinary course of business which do not remain unsatisfied or undischarged for a period of more than 60 days or which are being contested in good faith by appropriate proceedings;
(g) pledges or deposits in connection with workers compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(h) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(i) easements, rights-of-way, restrictions, development orders, plats, and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums which, in the aggregate, are not yet due substantial in amount and payable which do not in any case materially detract from the value of the property subject thereto or materially interfere with the payment ordinary conduct of which is not at the time required by Section 4.13business of Company or such Subsidiary;
(dj) Liens (other than granted by Company or any Lien imposed by ERISA) incurred or deposits made Subsidiary, as lessee, in the ordinary course of business on leased equipment, leasehold improvements and furnishings;
(ik) in connection with workers' compensationLiens created, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made assumed in connection with the borrowing of moneyacquisition of, the obtaining of advances or credit or the payment refinancing or any subsequent refinancing of Indebtedness incurred in connection with property, plant and equipment acquired after the deferred purchase price of Propertydate hereof and attaching only to the property, plant and equipment being acquired or refinanced;
(el) other Liens existing in existence on the date hereof listed on Schedule 7.3; provided that no such Lien is spread to cover any additional property after the date hereof and that the amount of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentany Indebtedness or other obligations secured thereby is not increased;
(fm) any Lien created Liens granted pursuant to secure all or any part Section 7.7 of the purchase price, Reorganization Plan;
(n) Liens granted by Company or Subsidiaries upon Real Property and related Personal Property which is Subsidiary Property Under Development and which is either financed by Indebtedness incurred by Subsidiaries pursuant to secure Debt incurred Section 7.2(e) or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory7.2(h), or any improvement thereon, acquired or constructed contributed by the Company to a Subsidiary pursuant to Section 7.9(g);
(o) Liens granted by Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Subsidiaries upon Real Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other and related Personal Property (or improvement thereon) which is an improvement Mezzanine Property Under Development and which is either financed by Indebtedness incurred by Subsidiaries pursuant to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereonSection 7.2(e) or which is real Property being improved (h), or contributed by such acquired or constructed Property (or improvement thereonCompany to a Subsidiary pursuant to Section 7.9(g),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(gp) intentionally omitted;
(q) inchoate Liens solely arising by operation of law in addition respect of Indebtedness incurred pursuant to the Liens permitted by the preceding clauses (a) through (fSection 7.2(k), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
Limitation on Liens. The Company Obligors will not, and will not permit any of its Restricted their Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company any Obligor or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, profits except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not yet due and payable) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business and not in connection with the borrowing of money;
(c) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the ownership of property or assets or the ordinary conduct of the business of any Obligor or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertystay;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Subsidiary (other than the Company and its Restricted Subsidiaries referred or Xxxx Barbados) to in Exhibit B an Obligor or to the First Amendmenta Subsidiary;
(f) any Lien created Liens existing as of the date of Closing and reflected in Schedule 10.5;
(g) Liens incurred after the date of Closing given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of an Obligor or a Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by an Obligor or a Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of an Obligor to whom authority to enter into the transaction has been delegated by the board of directors of such Obligor); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into an Obligor or a Subsidiary or its becoming a Subsidiary, or any improvement thereon, Lien existing on any property acquired by an Obligor or constructed by any Subsidiary at the Company time such property is so acquired (whether or a Restricted Subsidiary after not the date of the First AmendmentDebt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien on any acquired property shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default would exist;
(iiii) Liens securing Debt on property or assets of any Obligor or its Subsidiaries which Liens were given after the Closing Date, provided such Obligor makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property;
(j) any such extensions, renewals or replacements of any Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through subparagraphs (f), inclusive, (g) and (h) of this Section 4.410.5, Liens provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on Property (other than accounts receivable or inventory after the date of any Companyextension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; or
(k) Liens securing Priority Debt of the Company any Obligor or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by Section 10.4 and, provided further that no such Liens under this Section 10.5(k) may secure any obligations under the applicable limitations set forth in Section 4.2 and 4.3Bank Credit Agreements.
Appears in 1 contract
Limitation on Liens. The Company will Each of Quiksilver and the Borrowers shall not, and will shall not permit any of its Restricted their Subsidiaries to, directly or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of their property, assets or with respect to any Property or asset revenues (includingincluding trademarks, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiarycopyrights and other intellectual-property rights), whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments created hereunder or under any of the other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13Loan Documents;
(b) Liens existing on any attachment Property (other than trademarks, copyrights and other intellectual property rights) at the time of the acquisition of such Property and not created in anticipation of such acquisition; provided however, with respect to a Subsidiary, the stock of which is acquired by Quiksilver or judgment Lienanother Subsidiary, unless of such Property shall be deemed to be acquired a the judgment it secures shall not, within 30 days after time the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration stock of any such stay (Subsidiary is acquired by Quiksilver or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)other Subsidiary;
(c) statutory Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of landlords and Quiksilver or any Subsidiary, as the case may be, in conformity with GAAP or accounting principles generally accepted in the applicable jurisdiction;
(d) Liens created by operation of law not securing the payment of Indebtedness for money borrowed or guaranteed, including carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 45 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(de) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iif) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bidsperformance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, leases rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, would not cause a Material Adverse Effect;
(h) Liens in favor of (i) the Leasehold Improvement Lender (x) securing the Leasehold Improvement Loan and (y) granted by the US Borrower in favor of the Leasehold Improvement Lender pursuant to a security agreement, dated as of October 29, 2004, executed by the US Borrower securing its obligations under its guaranty, dated as of October 29, 2004, of the obligations of Quiksilver under the Leasehold Improvement Loan Agreement, and an intercreditor agreement acceptable to the Administrative Agent, to secure an aggregate amount of up to US$35,000,000 of additional financing for the build-out retail stores expected to be opened and/or existing stores which may be expanded, which Liens are subject to the terms of the Intercreditor Agreement or an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent;
(i) any Lien on assets (other than Capitalized Leases)trademarks, performance bonds, purchase, construction or sales contracts copyrights and other similar obligations, in each case not incurred or made in connection with the borrowing intellectual-property rights) of money, the obtaining of advances or credit or the payment Foreign Subsidiaries securing Indebtedness of the deferred purchase price of Propertyrelevant Foreign Subsidiary permitted under Section 6.2(g);
(ej) Liens existing on securing Indebtedness incurred after the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred hereof to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase pricepurchase, or to secure Debt incurred or assumed to pay all or any part of finance the purchase price or cost of constructionof, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendmentfixed assets, provided that
that (i) any such Lien shall extend solely is limited to the item fixed asset or items of such Property (or improvement thereon) so assets acquired or constructed andfinanced, if required by the terms of the instrument originally creating such Lienand any subsequent improvements thereto, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
and (ii) such Indebtedness is otherwise permitted under Section 6.2(j) or (m); and a Lien on QIPL's trademark rights to Quiksilver name, logo and related intellectual property in the principal amount territories of Australia and New Zealand, in favor of the Debt secured by any such Lien shall at no time exceed an amount equal former shareholders of QIPL, to secure the lesser obligation of (A) QAPL to pay the cost to the Company or such Restricted Subsidiary final installment of the Property (or improvement thereon) so acquired or constructed and (B) purchase price for the fair market value (as determined in good faith by the board of directors acquisition of the Company) shares of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such PropertyQIPL by QAPL; and
(gk) in addition Liens granted pursuant to the Escrow Security Agreement (as defined in the Bridge Loan Agreement) and Liens permitted by granted with respect to monies on deposit in the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of Senior Notes Escrow Account pursuant to documentation reasonably satisfactory to the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Administrative Agents.
Appears in 1 contract
Samples: Credit Agreement (Quiksilver Inc)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Material Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens"):
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Closing Date and set forth in Schedule 7.01 or included in the Company's consolidated financial statements as of June 30, 1997 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.07;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings are reasonably anticipated to have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens on the property of the Company or retirement benefits, or any of its Subsidiaries securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business, provided all such Liens in the aggregate would not (other than Capitalized Leases)even if enforced) cause a Material Adverse Effect;
(g) easements, performance bondsrights-of-way, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmenttaken as a whole;
(fh) Liens on assets of Subsidiaries acquired by the Company after the date of this Agreement, provided, however, that such Liens existed at the time of the respective acquisition and were not incurred in anticipation thereof;
(i) purchase money security interests on any Lien created to secure property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any such Lien shall extend attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
and (ii) the principal amount of the Debt Indebtedness secured thereby does not exceed 100% of the cost of such property;
(j) Liens securing obligations in respect of capital leases on assets subject to such leases;
(k) 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 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 Company in excess of those set forth by regulations promulgated by the Federal Reserve Board, and (ii) such deposit account is not intended by the Company or any Material Subsidiary to provide collateral to the depository institution except in either case when such deposit accounts are established or required in the ordinary course of business and would not have a Material Adverse Effect; and
(l) Liens on Permitted Receivables subject to a Permitted Receivables Purchase Facility;
(m) Liens on real property (i) acquired after the Closing Date by the Company or any Subsidiary, provided that such Liens existed at the time such property was acquired and were not created in anticipation thereof or (ii) acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the cost of acquiring such property, provided that (x) such Liens attach solely to the property so acquired in such transaction, and (y) the principal amount of the Indebtedness secured thereby does not exceed 100% of the cost of such property; and
(n) Notwithstanding the provisions of subsections 7.01(a) through (m), there shall be permitted Liens on property (including Liens which would otherwise be in violation of such subsections), provided that the sum of the aggregate Indebtedness of the Company and its Subsidiaries secured by any such Lien all Liens permitted under this subsection (n), excluding the Liens permitted under subsections (a) through (m), shall at no time not exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors 3% of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens 's total consolidated assets as shown on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3its consolidated balance sheet for its most recent prior fiscal quarter.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or suffer to exist, or permit to exist (upon the happening of a contingency or otherwise) any Lien on its property, revenues or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept as follows:
(ai) Liens for taxesimposed by law, assessments or such as carriers’, warehousemen’s and mechanics’ Liens and other governmental charges which are not yet due and payable or similar Liens arising in the payment ordinary course of which is not at the time required by Section 4.13business;
(bii) Liens on the capital stock of or any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of other equity interest in any such stay (or such lesser period of time as applicable law allows a judgment creditor Subsidiary to levy on such judgment)secure Nonrecourse Indebtedness;
(ciii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, upon or in each case, incurred any property acquired in the ordinary course of business to secure the purchase price of such property or to secure any obligation incurred solely for sums not yet due and payable or the payment purpose of which is not financing the acquisition of such property;
(iv) Liens existing on property at the time required by Section 4.13;
(d) Liens of the acquisition thereof (other than any such Lien imposed created in contemplation of such acquisition unless permitted by ERISAthe preceding clause (iii));
(v) incurred Liens granted in connection with any financing arrangement for the purchase of nuclear fuel or deposits made the financing of pollution control facilities, limited to the fuel or facilities so purchased or acquired;
(vi) Liens arising in connection with sales or transfers of, or financing secured by, accounts receivable or related contracts, provided that any such sale, transfer or financing shall be on arms’ length terms;
(vii) Liens securing Permitted Obligations;
(viii) Permitted Encumbrances;
(ix) Liens arising in connection with sale and leaseback transactions entered into by the Borrower, but only to the extent that the aggregate purchase price of all assets sold by the Borrower during the term of this Agreement pursuant to such sale and leaseback transactions does not exceed $1,000,000,000; and
(x) Liens, other than those described above in this Section 5.02(a), granted by the Borrower in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First AmendmentBorrower, provided that
(i) any such Lien shall extend solely to that the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal aggregate amount of the all Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by this clause (x) shall not exceed in the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of aggregate at any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3one time outstanding $100,000,000.
Appears in 1 contract
Samples: Credit Agreement (Exelon Corp)
Limitation on Liens. The No Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume assume, or permit suffer to exist be created, or incurred, or assumed, or to exist, any Lien of any kind on any of its properties or assets, or own or acquire, or agree to acquire any property of any character subject to or upon any mortgage, conditional sale agreement, or other title retention agreement; provided, however, that the foregoing restrictions shall not prohibit:
(upon the happening of a contingency or otherwisei) any Lien on tax lien, or with respect to any Property lien securing workers' compensation or asset unemployment insurance obligations, or any mechanic's carrier's or landlord's lien, or any lien arising under ERISA, or any security interest arising under article four (including, without limitation, any document bank deposits and collections) or instrument in respect five (letters of goods or accounts receivablecredit) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquiredUniform Commercial Code, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments similar security interest or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13;
lien, EXCEPT that this clause (bi) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor A) apply only to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen security interests and other similar Liens, in each case, incurred liens arising by operation of law (whether statutory or common law) and in the ordinary course of business and shall not apply to any security interest or other lien that secures any indebtedness for sums not yet due and payable borrowed money or the payment of which any guaranty thereof or any obligation that is not at the time required by Section 4.13;
(d) Liens in material default in any manner (other than any Lien imposed default if it is contested in good faith by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance timely and other types of social security or retirement benefits, or (ii) appropriate proceedings effective to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment stay enforcement of the deferred purchase price of Property;
(e) Liens existing on security interest or other lien in question and if an appropriate reserve for the date amount of the First Amendment liability in question shall have been established) and securing (B) not apply to any security interest or other lien upon any property of CHD, unless the Debt of the Company CHD Guaranty Documents shall have theretofore been duly executed and its Restricted Subsidiaries referred to in Exhibit B delivered to the First AmendmentBanks and the Agent;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) zoning or deed restrictions, public utility easements, minor title irregularities and similar matters having no Material Adverse Effect as a practical matter on the principal amount ownership or use of any of the Debt secured by property in question, EXCEPT that this clause (ii) shall not apply to any such Lien restriction, easement, title irregularity or similar matter encumbering or otherwise affecting any property of CHD unless the CHD Guaranty Documents shall at no time exceed an amount equal have theretofore been duly executed and delivered to the lesser of (A) Banks and the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, andAgent;
(iii) any lien securing or given in lieu of surety, stay, appeal or performance bonds, or securing performance of contracts or bids (other than contracts for the payment of money borrowed), or deposits required by law or governmental regulations or by any court order, decree, judgment or rule or as a condition to the transaction of business or the exercise of any right, privilege or license, EXCEPT that this clause (iii)
(A) shall apply only if and so long as the aggregate unpaid balance or all obligations so secured (except any referred to in clause (vi)) does not exceed ten million dollars ($10,000,000) at any one time outstanding,
(B) shall not apply to any lien or deposit securing an obligation that is in material default in any manner (other than any default contested in good faith by timely and appropriate proceedings effective to stay enforcement of the security interest or other lien in question and if an appropriate reserve for the amount of the liability in question shall have been established, and
(C) shall not apply to any lien upon any property of CHD, unless the CHD Guaranty Documents shall have theretofore been duly executed and delivered to the Banks and the Agent;
(iv) any Lien in favor of the Agent for the ratable benefit of the Banks;
(v) any mortgage, capitalized lease, security interest or other lien (each, a "purchase money security interest") which is created or assumed in purchasing, constructing or improving any real property or equipment (other than any property or equipment of CHD, unless the CHD Guaranty Documents shall have theretofore been duly executed and delivered to the Banks and the Agent) or to which any such Lien property is 57 subject when purchased, PROVIDED, that (A) the purchase money security interest shall be created contemporaneously with confined to the acquisition aforesaid property, (B) the indebtedness secured thereby (which may include a refinancing in whole or in part of the original indebtedness) does not exceed the total cost of the purchase, construction of or improvement, and (C) any such Propertyindebtedness, if repaid in whole or in part, cannot be reborrowed;
(vi) any Lien disclosed on SCHEDULE 7.02 attached hereto; and
(gvii) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of any financing statement perfecting a security interest that would be permissible under this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt 7.02. Each of the Company or any Restricted Subsidiaryforegoing Liens, provided that such Priority Debt shall be permitted by exceptions, and charges being referred to collectively as the applicable limitations set forth in Section 4.2 and 4.3"Permitted Exceptions."
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows a judgment creditor to levy on such judgment)more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(e) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made which, in the ordinary course aggregate, are not substantial in amount and which do not in any case materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with Indebtedness incurred pursuant to subsection 12.2(h);
(g) any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted 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 in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the First AmendmentCompany or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided thatthat (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt a bank account of the Company or any Restricted SubsidiarySubsidiary arising in connection with the cash pooling arrangements referred to in subsection 12.2(c);
(j) Liens arising out of any judgment or award (i) with respect to which an appeal or proceeding for review is being prosecuted in good faith bv appropriate proceedings diligently conducted, provided and with respect to which a stay of execution is in effect; and (ii) that such Priority Debt shall be does not constitute an Event of Default under clause (i) of Section 13; and
(k) Liens (not otherwise permitted by hereunder) which secure obligations not exceeding (as to the applicable limitations set forth in Section 4.2 Company and 4.3all Domestic Subsidiaries) a Dollar Equivalent Amount equal to $50,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.7;
(b) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lienother similar Liens arising in the Ordinary Course of Business which are not delinquent or remain payable without penalty or unless such lien is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and if such accrual or other appropriate provision, unless the judgment it secures if any, as shall not, within 30 days after the entry thereof, be required by GAAP shall have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)made therefor;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in incidental to the ordinary course conduct of its business or the ownership of its Property including (i) pledges or deposits in connection with workers' worker's compensation, unemployment insurance and other types of social security or retirement benefitslegislation, or (ii) deposits to secure (or to obtain letters of credit that secure) insurance, the performance of bids, tenders, contracts, leases, licenses, franchises and statutory obligations, surety bondseach in the Ordinary Course of Business, appeal bonds, bids, leases and (iii) other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case obligations which were not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertyproperty and which do not in the aggregate materially detract from the value of its Property or materially impair the use of such Property in the operation of its business;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 45 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 45 days after expiration of any such stay;
(e) Liens existing on easements, rights-of-way, restrictions, leases, sub-leases and other similar charges or encumbrances incurred in the date Ordinary Course of Business which, in each case, and in the aggregate, do not materially interfere with the ordinary conduct of the First Amendment business of the Company or any Restricted Subsidiary;
(f) Liens on Property of any Restricted Subsidiary securing obligations of such Restricted Subsidiary owing to the Company or another Restricted Subsidiary;
(g) any Lien existing prior to the time of acquisition upon any Property acquired by the Company or any Restricted Subsidiary after the Closing Date through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or placed upon Property at (or within 30 days after) the later of the time of acquisition or the completion of construction by the Company or any Restricted Subsidiary to secure all or a portion of (or to secure Indebtedness incurred to pay all or a portion of) the purchase price thereof, provided that (i) any such Lien does not encumber any other property of the Company or such Restricted Subsidiary, (ii) the Indebtedness secured by such Lien is not prohibited by the provisions of Section 8.5, (iii) the aggregate principal amount (without duplication) of the Indebtedness secured by such Lien at no time exceeds 80% of the cost to the Company and securing its Restricted Subsidiaries of the Debt Property subject to such Lien, and (iv) the aggregate outstanding principal amount of the Indebtedness secured by all purchase money Liens permitted by this subsection 8.1(g) does not exceed five percent (5%) of the aggregate book value of the Tangible Assets of the Company and its Restricted Subsidiaries referred to in Exhibit B to as of the First Amendmentend of the most recently ended fiscal quarter of the Company;
(fh) any Lien created Liens on the accounts, rights to secure all payment for goods sold or any part services rendered that are evidenced by chattel paper or instruments, and rights against persons who guarantee payment or collection of the purchase priceforegoing, or to secure Debt incurred or assumed to pay all or and on the Company's inventory and on the proceeds (as defined in the UCC in any part applicable jurisdiction) thereof securing the obligations of the purchase price Company permitted by subsection 8.5(d) and any extension, renewal, refunding or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided thatrefinancing thereof;
(i) any such Lien shall extend solely from and after the time the Facilities Subsidiary becomes a Restricted Subsidiary, Liens on (x) the accounts, rights to the item payment for goods sold or items of such Property services rendered that are evidenced by chattel paper or instruments (and rights against persons who guarantee payment or improvement thereon) so acquired or constructed and, if required by the terms collection of the instrument originally creating foregoing) of Plum Creek Manufacturing, L.P. and its Subsidiaries which are Restricted Subsidiaries, (y) the inventory of Plum Creek Manufacturing, L.P. and its Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as defined in the UCC in any applicable jurisdiction) thereof, in each case securing the obligations of Plum Creek Manufacturing, L.P. and such LienRestricted Subsidiaries under the Facility Subsidiary's Revolving Credit Facility (and any extension, other Property (renewal, refunding or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereonrefinancing thereof),;
(iij) any Lien renewing, extending, refunding or refinancing any Lien permitted by subsection (i) of this Section, provided that the principal amount secured is not increased and the Lien is not extended to other Property and further provided that the maturity of the Debt Lien is not extended beyond the maturity date of the Indebtedness which, at the time the Lien was initially placed upon the Property secured by any such Lien shall at no time thereby, Responsible Representatives declare would have been the maturity date of Indebtedness customary for the type of Property being financed;
(k) Liens, other than those set forth above, that secure amounts that in the aggregate do not exceed an amount equal $1,000,000;
(l) with respect to the lesser of (A) the cost Spinco Assets transferred to the Company Company, Plum Creek Southern or Plum Creek South Central pursuant to, and in axxxxxxxxx xxxx, xxx xxxxxxxxxx XXXX Xxxxxxxxxxxn Agreement, Liens on such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) Spinco Assets existing at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously the consummation of the Merger that do not materially impair the value of all the Spinco Assets and do not materially interfere with the acquisition or construction ordinary conduct of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by ;
(m) Liens existing as of the applicable limitations set forth in Section 4.2 Closing Date as described on Schedule 8.1; and 4.3(n) Liens created pursuant to the Loan Documents.
Appears in 1 contract
Limitation on Liens. The Company will Quiksilver and the Borrower shall not, and will shall not permit any of its Restricted their Subsidiaries to, directly or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of their property, assets or with respect to any Property or asset revenues (includingincluding trademarks, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiarycopyrights and other intellectual-property rights), whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments created hereunder or under any of the other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13Loan Documents;
(b) Liens existing on any attachment Property (other than trademarks, copyrights and other intellectual property rights) at the time of the acquisition of such Property and not created in anticipation of such acquisition; provided however, with respect to a Subsidiary, the stock of which is acquired by Quiksilver or judgment Lienanother Subsidiary, unless of such Property shall be deemed to be acquired a the judgment it secures shall not, within 30 days after time the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration stock of any such stay (Subsidiary is acquired by Quiksilver or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)other Subsidiary;
(c) statutory Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of landlords and Quiksilver or any Subsidiary, as the case may be, in conformity with GAAP or accounting principles generally accepted in the applicable jurisdiction;
(d) Liens created by operation of law not securing the payment of Indebtedness for money borrowed or guaranteed, including carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 45 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(de) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iif) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bidsperformance bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) easements, leases rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, would not cause a Material Adverse Effect;
(h) Liens in favor of (i) the Leasehold Improvement Lender (x) securing the Leasehold Improvement Loan and (y) granted by the Borrower in favor of the Leasehold Improvement Lender pursuant to a security agreement, dated as of October 29, 2004, executed by the Borrower securing its obligations under its guaranty, dated as of October 29, 2004, of the obligations of Quiksilver under the Leasehold Improvement Loan Agreement, and an intercreditor agreement acceptable to the Agent, to secure an aggregate amount of up to US$35,000,000 of additional financing for the build-out retail stores expected to be opened and/or existing stores which may be expanded, which Liens are subject to the terms of the Intercreditor Agreement or an intercreditor agreement in form and substance reasonably satisfactory to the Agent;
(i) any Lien on assets (other than Capitalized Leases)trademarks, performance bonds, purchase, construction or sales contracts copyrights and other similar obligations, in each case not incurred or made in connection with the borrowing intellectual-property rights) of money, the obtaining of advances or credit or the payment Foreign Subsidiaries securing Indebtedness of the deferred purchase price of Propertyrelevant Foreign Subsidiary permitted under Section 6.2(g);
(ej) Liens existing on securing Indebtedness incurred after the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred hereof to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase pricepurchase, or to secure Debt incurred or assumed to pay all or any part of finance the purchase price or cost of constructionof, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendmentfixed assets, provided that
that (i) any such Lien shall extend solely is limited to the item fixed asset or items of such Property (or improvement thereon) so assets acquired or constructed andfinanced, if required by the terms of the instrument originally creating such Lienand any subsequent improvements thereto, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
and (ii) such Indebtedness is otherwise permitted under Section 6.2(j) or (m); and a Lien on QIPL's trademark rights to Quiksilver name, logo and related intellectual property in the principal amount territories of Australia and New Zealand, in favor of the Debt secured by any such Lien shall at no time exceed an amount equal former shareholders of QIPL, to secure the lesser obligation of (A) QAPL to pay the cost to the Company or such Restricted Subsidiary final installment of the Property (or improvement thereon) so acquired or constructed and (B) purchase price for the fair market value (as determined in good faith by the board of directors acquisition of the Company) shares of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such PropertyQIPL by QAPL; and
(gk) in addition Liens granted pursuant to the Liens permitted by Escrow Security Agreement (as defined in the preceding clauses (a) through (fBridge Loan Agreement), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
Samples: Credit Agreement (Quiksilver Inc)
Limitation on Liens. The Company will shall not, and will not nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or any income offer or profits therefromagree to do so, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) Liens for taxescarriers', assessments warehousemen's, mechanics', landlords', materialmen's, repairmen's or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory similar Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable or the payment of which is not at the time required by Section 4.13appropriate proceedings;
(db) Liens (other than any Lien imposed by ERISA) incurred on the property of the Company or any of its Subsidiaries incurred, or pledges or deposits made required, in connection with workmen's compensation, unemployment insurance and other social security legislation;
(c) Liens on assets acquired after the date of this Agreement, provided, however, that such Liens existed at the time such assets were acquired and were not created in anticipation thereof;
(d) Liens securing taxes that remain payable without penalty or which are being contested in good faith by appropriate proceedings where collection thereof is stayed; provided that the Company has set aside on its books reserves with respect to such taxes (segregated to the extent required by GAAP) deemed by it to be adequate;
(e) Purchase money security interests on any property acquired or held by the Company in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not securing Indebtedness incurred or made in connection with assumed for the borrowing purpose of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
(i) that any such Lien shall extend solely attaches to such property concurrently with or within 90 days after the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) acquisition thereof and provided that the principal amount of the Debt Indebtedness secured by any such Lien purchase money security interests shall at no time not in the aggregate exceed an amount equal to 5% of the lesser Consolidated Capitalization of (A) the cost to the Company and its Subsidiaries;
(f) Any right which any municipal or such Restricted Subsidiary governmental body or agency may have by virtue of any franchise, license, contract or status to purchase or designate a purchaser of, or order the sale of, any property of the Property (Company upon payment of reasonable compensation therefor or improvement thereon) so acquired to terminate any franchise, license or constructed other rights or to regulate the property and (B) the fair market value (as determined in good faith by the board of directors business of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.;
Appears in 1 contract
Samples: Credit Agreement (Oneok Inc /New/)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which or claims that are not yet due delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and payable diligently concluded; provided that any reserve or the payment of which other appropriate provision as is not at the time required by Section 4.13in conformity with GAAP has been made therefor;
(b) any attachment or judgment LienLxxxx imposed by law, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers’, warehousemen’s, mechanics’, materialmen and materialmen’s, repairmen’s, landlord’s or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 30 days or the payment of which is not at the time required that are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISAERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business (i) in connection with workers' ’ compensation, unemployment insurance insurance, and other types of social security or retirement benefits, or security;
(iid) Liens to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, or appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchasedeposits to secure the performance of bids, construction trade contracts, government contracts, warranty requirements, leases or sales contracts and licenses or other similar obligationsobligations of a like nature or incurred in the ordinary course of business (including, in each case not incurred or made in connection with the borrowing of moneywithout limitation, the obtaining of advances or credit or the payment of the deferred purchase price of Propertylandlord Liens on leased real property);
(e) Liens existing on survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the date use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentsuch Person;
(f) Liens in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien shall at any Lien created time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby shall not be increased (except by an amount equal to secure all a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(g) Liens securing Indebtedness of the Borrower or any part other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the purchase priceacquisition of such fixed or capital assets, or to secure Debt incurred or assumed to pay all or (ii) such Liens shall not at any part of the purchase price or cost of construction, of time encumber any Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed the Property financed by such Indebtedness and (iii) the Company or a Restricted Subsidiary after amount of Indebtedness secured thereby shall not be increased;
(h) Liens created pursuant to the date of the First Amendment, provided thatSecurity Documents;
(i) any such Lien shall extend solely to interest or title of a lessor under any lease entered into by the item Borrower or items any other Subsidiary in the ordinary course of such Property its business and covering only the assets so leased;
(j) judgment liens securing judgments not constituting (or improvement thereonwhich would otherwise create) so an Event of Default;
(k) licenses of Intellectual Property in the ordinary course of business;
(l) liens on fixed assets existing at the time such fixed assets are acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with a Permitted Acquisition and not created in contemplation thereof;
(m) deposits in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability to insurance carriers;
(n) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and other similar Liens arising in the ordinary course of business;
(o) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(p) leases or subleases granted to third Persons not interfering with the ordinary course of business of the Borrower or any of its Subsidiaries;
(q) Liens on assets of a Subsidiary of the Borrower that is not a Subsidiary Guarantor securing Indebtedness of that Subsidiary; provided that such Indebtedness was permitted to be incurred by Section 6.2;
(r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(s) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such Capital Stock, (ii) such Liens do not at any time encumber any Property other than the Capital Stock of such acquired Person and (iii) the amount of Indebtedness secured thereby does not exceed $50,000,000;
(t) Liens securing Indebtedness of the Borrower or constructed Property (or improvement thereonany Subsidiary incurred pursuant to Section 6.2(g) or which is real Property being improved (m); provided that such Liens shall at all times be subject to the Second Lien Intercreditor Agreement;
(u) Liens not otherwise permitted by such acquired or constructed Property this Section 6.3, so long as neither (or improvement thereon),
i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the principal amount aggregate Fair Market Value (determined as of the Debt secured by any date such Lien shall at no time exceed an amount equal to the lesser of (Ais incurred) the cost to the Company or such Restricted Subsidiary of the Property assets subject thereto exceeds the greater of $25,000,000 or 1.00% of Consolidated Total Assets at any one time;
(or improvement thereonv) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors Liens with respect to Indebtedness of the CompanyBorrower or any other Subsidiary incurred pursuant to Section 6.2(o) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyand Section 6.2(q); and
(gw) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt Indebtedness of the Company Borrower or any Restricted Subsidiary, Subsidiary incurred pursuant to Section 6.2(p); provided that such Priority Debt Liens shall at all times be permitted by subject to (i) in the applicable limitations set forth case of Indebtedness secured on a pari passu basis with the Obligations, a Pari Passu Intercreditor Agreement and (ii) in Section 4.2 and 4.3the case of Indebtedness secured on a junior basis to the Obligations, the Second Lien Intercreditor Agreement.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, therefrom or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, property taxes and assessments or other governmental charges which are or levies and Liens securing claims or demands of mechanics and materialmen; provided that payment thereof is not yet at the time required by Section 9.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other Lien of like general nature, in any such case incurred in the ordinary course of business and not in connection with the borrowing of money; provided that (i) any such Lien secures only amounts not due and payable or the payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not at materially impair the time required by Section 4.13business of the Company and its Subsidiaries taken as a whole or the value of the related property for the purposes of such business;
(bc) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13stay;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment existing as of the deferred purchase price date of PropertySecond Amendment Effective Date and described on Schedule 5.15 hereto;
(e) Liens existing on survey exceptions or minor encumbrances, leases or subleases granted to others, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the date use of real properties, (i) which are necessary for the conduct of the First Amendment and securing the Debt activities of the Company and its Restricted Subsidiaries referred to or which customarily exist on properties of corporations engaged in Exhibit B to similar activities and similarly situated and (ii) which do not in any event materially impair their use in the First Amendmentoperation of the business of the Company and its Subsidiaries taken as a whole or the value of such properties;
(f) any Lien Liens created or incurred after the date of the Closing given to secure all or any part the payment of the purchase priceprice incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property or assets at the time of acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to secure Debt incurred or assumed to pay all or any part the payment of the acquisition or purchase price or cost of construction, as the case may be, of Property the property or assets to which they attach; provided that (other than accounts receivable i) the Lien shall attach solely to the property or inventory)assets acquired, purchased or any improvement thereonconstructed, acquired (ii) such Lien shall have been created or constructed incurred within 180 days of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined by a Responsible Officer of the Company) or the cost of construction on the date of the First Amendmentcompletion thereof, provided that
(iiv) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to have been created or incurred within the lesser of applicable limitations provided in Sections 10.1 and 10.2, (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereonv) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such acquisition or constructionLien and after giving effect thereto and to the application of the proceeds thereof, andno Event of Default would exist and (vi) the aggregate outstanding amount of Debt secured by all such Liens shall not exceed $10,000,000 at any time;
(iiig) Liens incurred in connection with any such Lien shall be created contemporaneously transfer of an interest in accounts or notes receivable or related assets as part of a Qualified Receivables Transaction;
(h) Liens in favor of the Collateral Agent securing the Secured Obligations and subject to the Intercreditor Agreement;
(i) Liens in favor of the Bank Agent in (1) property of Foreign Subsidiaries to secure the obligations of Foreign Subsidiaries that are borrowers under the Credit Agreement and (2) cash collateral accounts of the Company and its Domestic Subsidiaries with deposits not in excess of $10,000,000 in the acquisition aggregate securing obligations of the Company and Domestic Subsidiaries under Swap Contracts in existence prior to the Second Amendment Effective Date (but not extensions, renewals or construction rollovers thereof);
(j) Liens on assets of such Propertythe Modine Holding Consolidated Group securing Debt owing by the Modine Holding Consolidated Group and permitted under Section 10.2(g); and
(gk) in addition to the Liens permitted by the preceding otherwise described in clauses (a) through (f), inclusive, of this Section 4.4j) above, Liens on Property (other securing an aggregate amount of Debt outstanding at any time of no more than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3$10,000,000.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.7;
(b) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lienother similar Liens arising in the Ordinary Course of Business which are not delinquent or remain payable without penalty or unless such lien is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and if such accrual or other appropriate provision, unless the judgment it secures if any, as shall not, within 30 days after the entry thereof, be required by GAAP shall have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)made therefor;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in incidental to the ordinary course conduct of its business or the ownership of its Property including (i) pledges or deposits in connection with workers' worker's compensation, unemployment insurance and other types of social security or retirement benefitslegislation, or (ii) deposits to secure (or to obtain letters of credit that secure) insurance, the performance of bids, tenders, contracts, leases, licenses, franchises and statutory obligations, surety bondseach in the Ordinary Course of Business, appeal bonds, bids, leases and (iii) other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case obligations which were not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertyproperty and which do not in the aggregate materially detract from the value of its Property or materially impair the use of such Property in the operation of its business;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 45 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 45 days after expiration of any such stay;
(e) Liens existing on easements, rights-of-way, restrictions, leases, sub-leases and other similar charges or encumbrances incurred in the date Ordinary Course of Business which, in each case, and in the aggregate, do not materially interfere with the ordinary conduct of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary;
(f) Liens on Property of any Restricted Subsidiary securing obligations of such Restricted Subsidiary owing to the Company or another Restricted Subsidiary;
(g) any Lien existing prior to the time of acquisition upon any Property acquired by the Company or any Restricted Subsidiary after the Closing Date through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or placed upon Property at (or within 30 days after) the later of the time of acquisition or the completion of construction by the Company or any Restricted Subsidiary to secure all or a portion of (or to secure Indebtedness incurred to pay all or a portion of) the purchase price thereof, provided that (i) any such Priority Debt shall be Lien does not encumber any other property of the Company or such Restricted Subsidiary, (ii) the Indebtedness secured by such Lien 84 92 is not prohibited by the provisions of Section 8.5, (iii) the aggregate principal amount of the Indebtedness secured by such Lien at no time exceeds 80% of the cost to the Company and its Restricted Subsidiaries of the Property subject to such Lien, and (iv) the aggregate outstanding principal amount (without duplication) of the Indebtedness secured by all such Liens and the Indebtedness of all Restricted Subsidiaries at no time (a) from June 30, 1996 to June 8, 1999, exceeds $25,000,000, and (b) from June 9, 1999 to the Revolving Termination Date, exceeds $50,000,000;
(h) Liens on the accounts, rights to payment for goods sold or services rendered that are evidenced by chattel paper or instruments, and rights against persons who guarantee payment or collection of the foregoing, and on the Company's inventory and on the proceeds (as defined in the UCC in any applicable jurisdiction) thereof securing the obligations of the Company permitted by subsection 8.5(d) and any extension, renewal, refunding or refinancing thereof;
(i) any Lien existing on the applicable limitations Property of the Company or its Restricted Subsidiaries on the Closing Date and set forth in Section 4.2 Schedule 8.1 securing Indebtedness outstanding on such date;
(j) any Lien renewing, extending, refunding or refinancing any Lien permitted by subsection (i) of this Section, provided that the principal amount secured is not increased and 4.3the Lien is not extended to other Property and further provided that the maturity of the Lien is not extended beyond the maturity date of the Indebtedness which, at the time the Lien was initially placed upon the Property secured thereby, Responsible Representatives declare would have been the maturity date of Indebtedness customary for the type of Property being financed; and
(k) Liens, other than those set forth above, that secure amounts that in the aggregate do not exceed $1,000,000.
Appears in 1 contract
Samples: Revolving Credit and Bridge Loan Agreement (Plum Creek Timber Co L P)
Limitation on Liens. The Company will notshall not directly or indirectly, and will not nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property or asset assets, whether now owned or hereafter acquired, or offer to agree to do so except for:
(including, without limitation, a) any document or instrument in respect of goods or accounts receivable) Lien existing on the property of the Company or any of its Subsidiaries on the Closing Date and set forth in the Disclosure Schedules securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under the Loan Documents or the Senior Agreement;
(c) Liens for taxes, assessments or other governmental charges which are not yet due delinquent or remain payable without penalty, or which are being contested in good faith by appropriate proceedings upon stay of execution of the enforcement thereof and payable for which adequate reserves in accordance with GAAP or the payment of which is not at the time required by Section 4.13other appropriate provisions have been made;
(bd) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lien, unless other similar Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged ordinary course of business which are not delinquent or execution thereof stayed pending appeal, remain payable without penalty or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)which are being contested in good faith and by appropriate proceedings;
(ce) pledges or deposits in connection with workmen's compensation, unemployment insurance and other social security legislation;
(f) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(g) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums which do not yet due and payable in any case materially interfere with the ordinary conduct of the businesses of the Company or of its Subsidiaries;
(h) Liens on assets of Persons which become Subsidiaries after the payment date of which is not this Agreement; provided, however, that such Liens existed at the time required by Section 4.13the respective Persons became Subsidiaries and were not created in anticipation thereof;
(di) Liens (other than on any Lien imposed by ERISA) asset securing Indebtedness incurred or deposits made in assumed for the ordinary course purpose of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure financing all or any part of the purchase pricecost of acquiring such asset; provided, however, that any such Lien attaches to such asset concurrently with within ninety (90) days after the acquisition or refinancing thereof;
(j) Liens on any asset securing Indebtedness permitted to be incurred pursuant to Section 6.5;
(k) Liens upon specific items of inventory or other goods and proceeds securing obligations in respect of bankers' acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods;
(l) Liens in favor of customs and revenue authorities arising as a matter of law to secure Debt incurred payment of customs duties in connection with the importation of goods;
(m) Judgment Liens not giving rise to an Event of Default;
(n) Liens securing reimbursement obligations with respect to letters of credit opened in the ordinary course of business;
(o) Liens encumbering property or assumed to pay all assets under construction or any part arising from progress or partial payments by a customer of the purchase price Company or cost one of construction, its Subsidiaries relating to sales of Property goods or services in the ordinary course; and
(other than accounts receivable p) Liens arising out of consignment or inventory), or any improvement thereon, acquired or constructed similar arrangements for the sale of goods entered into by the Company or a Restricted Subsidiary after any of its Subsidiaries in the date ordinary course of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3business.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Precision Standard Inc)
Limitation on Liens. The Neither the Company nor MCN will not, and (nor will not MCN permit any of its Restricted Subsidiaries Significant Subsidiary to, directly or indirectly ) create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien in, of or on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) the property of the Company Company, MCN or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsof their Subsidiaries, except:
(ai) Liens for taxes, assessments or other governmental charges which are not yet due and payable or levies on its property if the payment of which is same shall not at the time required be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by Section 4.13;appropriate proceedings and for which adequate reserves in accordance with generally accepted principles of accounting shall have been set aside on its books.
(bii) any attachment or judgment LienLiens imposed by law, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen, 's and mechanics, materialmen ' liens and other similar Liens, in each case, incurred liens arising in the ordinary course of business for sums not yet due and payable or the which secure payment of obligations not more than 60 days past due or which is not at the time required are being contested in good faith by Section 4.13;appropriate proceedings and for which adequate reserves shall have been set aside on its books.
(diii) Liens (other than any Lien imposed by ERISA) incurred arising out of pledges or deposits made under 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, MCN or their Subsidiaries, as the case may be.
(v) Liens on the capital stock, partnership interest, or other evidence of ownership of any Subsidiary or such Subsidiary's assets that secure Project Finance Indebtedness for such Subsidiary.
(vi) Liens arising in connection with first mortgage bonds issued by any Significant Subsidiary pursuant to any first mortgage indenture in effect as of the date of this Indenture, as such indenture may be supplemented from time to time.
(vii) Purchase money liens upon or in property now owned or hereafter acquired in the ordinary course of business (i) in connection consistent with workers' compensationthe Company's or MCN's business practices, unemployment insurance and other types of social security or retirement benefits, or (iias the case may be) to secure (or to obtain letters of credit that secureA) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;such property or (B) Indebtedness incurred solely for the purpose of financing the acquisition, construction, or improvement of any such property to be subject to such liens, or Liens existing on any such property at the time of acquisition, or extensions, renewals, or replacements of any of the foregoing for the same or a lesser amount; provided that no such lien shall extend to or cover any property other than the property being acquired, constructed, or improved and replacements, modifications, and proceeds of such property, and no such extension, renewal, or replacement shall extend to or cover any property not theretofore subject to the Lien being extended, renewed, or replaced.
(eviii) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;Securities are first issued hereunder.
(fix) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other Liens for no more than 90 days arising from a transaction involving accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted SubsidiaryMCN, provided that as the case may be (including the sale of such Priority Debt shall be permitted by accounts receivable), where such accounts receivable arose in the applicable limitations set forth in Section 4.2 and 4.3ordinary course of the Company's or MCN's business, as the case may be.
Appears in 1 contract
Samples: Indenture (MCN Corp)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Borrower or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;business; SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the Company and its business of the Borrower or such Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Liens created pursuant to construction, operating, farmout and maintenance agreements, space lease agreements, Joint Venture Charters and related documents (to the extent requiring a Lien created to secure all or any part on the equity interest of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company Borrower or any Restricted Subsidiary, as the case may be, in the applicable Joint Venture is required thereunder), division orders, contracts for sale, transportation or exchange of oil and natural gas, unitization and pooling declarations and agreements, area of mutual interest agreements and other similar agreements, in each case having ordinary and customary terms and entered into in the ordinary course of business by the Borrower and its Restricted Subsidiaries;
(g) additional Liens securing Indebtedness and other obligations not to exceed $10,000,000 at any one time outstanding;
(h) the Borrower and its Restricted Subsidiaries may pledge on a non-recourse basis (i) their equity interest in Gateway to secure Indebtedness of Gateway under the Xxxxx Xxxx Financing Documents and (ii) their equity interest in Cameron Highway to secure Indebtedness of Cameron Highway under the Cameron Highway Financing Documents;
(i) Liens on the Collateral securing the Guarantee Obligations permitted by Section 8.4(e) on a pari passu basis with the Liens on the Collateral securing the Obligations and guarantees thereof, subject to the terms and provisions of the Intercreditor Agreement;
(j) Liens created pursuant to the Loan Documents;
(k) Liens securing Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of the Borrower or any Restricted Subsidiary or to which any asset is subject existing at the time such asset is acquired by the Borrower or any Restricted Subsidiary; provided that (A) such Liens are not created in contemplation of or in connection with i. any Person being merged with or into or becoming a Subsidiary of the Borrower or any Restricted Subsidiary as described in clause (i) above, or ii. any asset being acquired by the Borrower or any Restricted Subsidiary as described in clause (ii) above, as the case may be, (B) such Liens shall secure only those obligations which such Liens secure on the date on which i. such Person merges into or becomes a Subsidiary of the Borrower or any Restricted Subsidiary or ii. such asset is acquired by the Borrower or any Restricted Subsidiary, as the case may be, and any refinancing, refunding or replacement of such obligations (provided that such Priority Debt refinancing, refunding or replacement does not result in an increase in the amount of such obligations), and (C) such Liens shall be not apply to any property or assets of the Borrower or any of its Subsidiaries or any Restricted Subsidiary other than property or assets as to SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT which a Lien has been granted prior to the date on which i. such Person merges into or becomes a Subsidiary or the Borrower or any Restricted Subsidiary or ii. such asset is acquired by the Borrower or any Restricted Subsidiary, as the case may be, and the proceeds thereof;
(l) Liens securing sale/leaseback transactions permitted by Section 8.11;
(m) Liens securing Indebtedness or other obligations of (i) any Restricted Subsidiary to the applicable limitations set forth Borrower or Co-Borrower or (ii) any Restricted Subsidiary to any other Restricted Subsidiary; or
(n) In connection with its obligations pursuant to any construction management agreement, operating agreement or other similar agreement entered into with a Joint Venture, each Restricted Subsidiary may grant, on a non-recourse basis, a Lien on any of its easements, rights of way, access permits or other similar rights located in Section 4.2 and 4.3the Gulf of Mexico that have been granted to such Restricted Subsidiary by the Minerals Management Service of the United States Department of the Interior.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "PERMITTED LIENS"):
(a) any document or instrument in respect of goods or accounts receivableLien (other than a Lien on the Collateral) existing on property of the Company or any Subsidiary on the Restatement Date and set forth in SCHEDULE 8.01 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment thereof is permitted by SECTION 7.07, provided that no notice of which is not at lien has been filed or recorded under the time required by Section 4.13Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISAERISA and other than a Lien on the Collateral) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens (other than Liens on the Collateral) on the property of the Company or retirement benefits, or its Subsidiaries securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business; PROVIDED, that all such Liens in the aggregate could not (other than Capitalized Leases)even if enforced) reasonably be expected to cause a Material Adverse Effect;
(g) easements, performance bondsrights-of-way, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fh) Liens on assets of corporations which become Subsidiaries after the Closing Date, PROVIDED, HOWEVER, that such Liens existed at the time the respective corporations became Subsidiaries and were not created in anticipation thereof;
(i) purchase money security interests on any Lien created to secure property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
acquiring such property; PROVIDED THAT (i) any such Lien shall extend attaches to such property concurrently with or within 45 days after the acquisition thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property, and (iv) the principal amount of the Indebtedness secured by any and all such Lien purchase money security interests shall not at no any time exceed an amount equal $2,500,000;
(j) Liens arising solely by virtue of any statutory or common law provision relating to the lesser banker's liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; PROVIDED THAT (Ai) the cost such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or such Restricted any Subsidiary in excess of those set forth by regulations promulgated by the Property (or improvement thereon) so acquired or constructed FRB, and (Bii) the fair market value (as determined in good faith such deposit account is not intended by the board of directors of Company or any Subsidiary to provide collateral to the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, anddepository institution;
(iiik) any such Lien shall be created contemporaneously Liens on the property financed with the acquisition or construction of Synthetic Lease Obligations incurred pursuant to SUBSECTION 8.05(e) which secure such PropertySynthetic Lease Obligations; and
(gl) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property any property (other than accounts receivable or inventory of any Companythe Collateral) securing Priority Debt of the Company Indebtedness permitted to be incurred pursuant to SUBSECTION 8.05(e) or any Restricted Subsidiary, provided that 8.10(c); PROVIDED THAT such Priority Debt secured Indebtedness shall be permitted by the applicable limitations set forth not exceed $2,500,000 in Section 4.2 and 4.3aggregate principal amount.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company Borrower’s or any such Restricted Subsidiary, whether now owned of its Subsidiaries’ assets or held or hereafter acquiredproperties of any character, or on any income shares of Equity Interests or profits therefrom, or assign or otherwise convey Indebtedness of any right to receive income or profitsof its Subsidiaries, except:
(a) Liens for taxesin existence on the Effective Date and listed on Schedule 6.7 and other Liens, assessments or other governmental charges which are not yet due securing Indebtedness of the Borrower and payable or the payment of which is not at the time required its Subsidiaries permitted by Section 4.136.8(a); provided that such Lien (i) shall not apply to any other property or asset of the Borrower or any Subsidiary after the Effective Date and (ii) shall secure only those obligations which it secures on the date hereof ;
(b) any attachment Lien existing on any property or judgment Lien, unless asset prior to the judgment it secures shall not, within 30 days acquisition thereof by the Borrower or any of its Subsidiaries or existing on any property or asset of any Person that becomes a Subsidiary of the Borrower after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor date hereof prior to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with workers' compensationsuch acquisition or such Person becoming a Subsidiary of the Borrower, unemployment insurance and other types of social security or retirement benefitsas the case may be, or (ii) such Lien shall not apply to secure any other property or assets of the Borrower or any of its Subsidiaries, (or to obtain letters of credit that secureiii) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case Indebtedness secured thereby does not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment exceed 75% of the deferred purchase price fair market value of Property;
such property or asset and (eiv) Liens existing such Lien shall secure only those obligations which it secures on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all such acquisition or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Person becomes a Subsidiary of the Property (or improvement thereon) so acquired or constructed Borrower, as the case may be and (B) extensions, renewals and replacements thereof that do not increase the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyoutstanding principal amount thereof; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is levies, or other statutory obligations, not at the time required delinquent or that are being contested in good faith by Section 4.13appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of Mid-Holdings or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) any attachment carriers’, warehousemen’s, landlords’, mechanics’, contractors’, materialmen’s, repairmen’s or judgment other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 60 days or if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, unless or that are being contested in good faith by appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the judgment it secures shall notbooks of the Group Members in conformity with GAAP), within 30 days after (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the entry thereof, have been discharged importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or execution other goods and proceeds thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any Person securing such stay (Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such lesser period other goods in the ordinary course of time as applicable law allows a judgment creditor to levy on such judgment)business;
(c) (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any Group Member;
(d) Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory Liens obligations, surety, stay, customs and appeal bonds, performance and/or return of landlords money bonds, completion guarantees and Liens other obligations of carriersa like nature (including those to secure health, warehousemensafety and environmental obligations) incurred in the ordinary course of business;
(e) easements, mechanicsrights-of-way, materialmen covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property), encroachments, protrusions and other similar Liens, in each case, encumbrances and title defects incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made that, in the ordinary course aggregate, do not materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the Property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date business of the First Amendment and securing the Debt Group Members taken as a whole; provided, that none of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentforegoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, (y) disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereof or (z) that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien created permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to secure all any additional property other than (A) after-acquired property that is affixed or any part incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the purchase priceobligations secured or benefited by such Liens is permitted by Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to secure Debt incurred or assumed to pay all or any part such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of Property such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(other than accounts receivable h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility or inventoryExtended Revolving Credit Commitments), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that;
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of Mid-Holdings after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted by Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Lien shall extend Liens cover solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms Property of the instrument originally creating such Lien, other Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto);
(l) Liens securing Indebtedness permitted under Section 6.2(h) or improvement thereonany Refinancing Indebtedness in respect thereof; provided, that the relative Lien priority thereof is set forth in the ABL Intercreditor Agreement or any other intercreditor arrangements entered pursuant to this Agreement;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(p) licenses and sublicenses of Intellectual Property granted by any Group Member in the ordinary course of business;
(q) UCC financing statements, PPSA financing statements or similar public filings that are filed as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business;
(r) Liens on property rented to, or leased by, any Group Member pursuant to a Sale and Leaseback Transaction; provided, that (i) such Sale and Leaseback Transaction is an improvement permitted by Section 6.10, (ii) such Liens do not encumber any other property of Mid-Holdings or its Restricted Subsidiaries and the proceeds and products of and accessions to or is acquired for specific use such property, and (iii) such Liens secure only the Attributable Indebtedness incurred in connection with such acquired or constructed Property Sale and Leaseback Transaction;
(or improvement thereons) Liens on the assets of Non-Loan Party Subsidiaries that secure (i) Indebtedness of Non-Loan Party Subsidiaries permitted pursuant to Section 6.2 (and related obligations) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) obligations of Non-Loan Party Subsidiaries other than Indebtedness incurred in the principal amount ordinary course of business;
(i) Liens on the Collateral securing obligations in respect of Incremental Equivalent Debt, and any Permitted Refinancing thereof, and any Guarantee Obligations by the Guarantors in respect thereof, and (ii) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt or Incremental Equivalent Debt (in each case, as defined in either the Senior Lien Credit Agreement or the Junior Lien Credit Agreement as in effect as of the Debt secured date hereof) and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of, any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.foregoing;
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which or claims that are not yet due delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and payable diligently concluded; provided that any reserve or the payment of which other appropriate provision as is not at the time required by Section 4.13in conformity with GAAP has been made therefor;
(b) any attachment or judgment LienLxxxx imposed by law, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers’, warehousemen’s, mechanics’, materialmen and materialmen’s, repairmen’s, landlord’s or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 30 days or the payment of which is not at the time required that are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISAERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business (i) in connection with workers' ’ compensation, unemployment insurance insurance, and other types of social security or retirement benefits, or security;
(iid) Liens to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, or appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchasedeposits to secure the performance of bids, construction trade contracts, government contracts, warranty requirements, leases or sales contracts and licenses or other similar obligationsobligations of a like nature or incurred in the ordinary course of business (including, in each case not incurred or made in connection with the borrowing of moneywithout limitation, the obtaining of advances or credit or the payment of the deferred purchase price of Propertylandlord Liens on leased real property);
(e) Liens existing on survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the date use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentsuch Person;
(f) Liens in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien shall at any Lien created time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby shall not be increased (except by an amount equal to secure all a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(g) Liens securing Indebtedness of the Borrower or any part other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the purchase priceacquisition of such fixed or capital assets, or to secure Debt incurred or assumed to pay all or (ii) such Liens shall not at any part of the purchase price or cost of construction, of time encumber any Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed the Property financed by such Indebtedness and (iii) the Company or a Restricted Subsidiary after amount of Indebtedness secured thereby shall not be increased;
(h) Liens created pursuant to the date of the First Amendment, provided thatSecurity Documents;
(i) any such Lien shall extend solely to interest or title of a lessor under any lease entered into by the item Borrower or items any other Subsidiary in the ordinary course of such Property its business and covering only the assets so leased;
(j) judgment liens securing judgments not constituting (or improvement thereonwhich would otherwise create) so an Event of Default;
(k) licenses of Intellectual Property in the ordinary course of business;
(l) liens on fixed assets existing at the time such fixed assets are acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with a Permitted Acquisition and not created in contemplation thereof;
(m) deposits in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability to insurance carriers;
(n) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and other similar Liens arising in the ordinary course of business;
(o) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(p) leases or subleases granted to third Persons not interfering with the ordinary course of business of the Borrower or any of its Subsidiaries;
(q) Liens on assets of a Subsidiary of the Borrower that is not a Subsidiary Guarantor securing Indebtedness of that Subsidiary; provided that such Indebtedness was permitted to be incurred by Section 6.2;
(r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(s) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such Capital Stock, (ii) such Liens do not at any time encumber any Property other than the Capital Stock of such acquired Person and (iii) the amount of Indebtedness secured thereby does not exceed $50,000,000;
(t) Liens securing Indebtedness of the Borrower or constructed Property (or improvement thereonany Subsidiary incurred pursuant to Section 6.2(g) or which is real Property being improved (m); provided that such Liens shall at all times be subject to the Second Lien Intercreditor Agreement;
(u) Liens not otherwise permitted by such acquired or constructed Property this Section 6.3, so long as neither (or improvement thereon),
i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the principal amount aggregate Fair Market Value (determined as of the Debt secured by any date such Lien shall at no time exceed an amount equal to the lesser of (Ais incurred) the cost to the Company or such Restricted Subsidiary of the Property (assets subject thereto exceeds the greater of $25,000,000 or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board 1.00% of directors of the Company) of such Property (or improvement thereon) Consolidated Total Assets at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyone time; and
(gv) in addition Liens with respect to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt Indebtedness of the Company Borrower or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in other Subsidiary incurred pursuant to Section 4.2 and 4.36.2(o).; and
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Limitation on Liens. The Company will Lessee shall not, and will shall not suffer ------------------- or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits property, whether now owned or held or hereafter acquired, other than the following ("Permitted Liens"): ---------------
(i) any Lien existing on property of the Lessee or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:Subsidiary on the Closing Date and set forth in Schedule 5.2(a)(i) ------------------ securing Indebtedness outstanding on such date;
(aii) any Lien created under any Operative Document;
(iii) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.13------- 5.1(f), provided that no notice of lien has been filed or recorded ------ -------- ---- under the Code;
(biv) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lienother similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, unless which proceedings have the judgment it secures shall not, within 30 days after effect of preventing the entry thereof, have been discharged forfeiture or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after sale of the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)property subject thereto;
(cv) statutory Liens (other than any Lien imposed by ERISA) consisting of landlords and Liens pledges or deposits required in the ordinary course of carriersbusiness in connection with workers' compensation, warehousemen, mechanics, materialmen unemployment insurance and other similar Lienssocial security legislation;
(vi) Liens on the property of the Lessee or its Subsidiaries securing (x) the non-delinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (y) Contingent Obligations in connection with performance bonds, surety bonds and appeal bonds, and (z) other nondelinquent obligations of a like nature, in each case, incurred in the ordinary course of business for sums business; provided that all such Liens in -------- ---- the aggregate could not yet due and payable or the payment of which is not at the time required by Section 4.13reasonably be expected to cause a Material Adverse Effect;
(dvii) Liens consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively -------- ---- stayed and the obligations secured by all such Liens in the aggregate at any time outstanding for the Lessee and its Subsidiaries could not reasonably be expected to cause a Material Adverse Effect;
(viii) easements, rights-of-way, restrictions and other than any Lien imposed by ERISA) similar encumbrances incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationswhich, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price businesses of Propertythe Lessee and its Subsidiaries;
(eix) Liens existing on assets of corporations or other entities which become Subsidiaries after the date of this Agreement, provided, -------- however, that such Liens existed at the First Amendment time the respective ------- corporations or other entities became Subsidiaries and securing were not created in anticipation thereof and the Debt of obligations secured by all such Liens in the Company and its Restricted Subsidiaries referred aggregate at any time outstanding could not reasonably be expected to in Exhibit B to the First Amendmentcause a Material Adverse Effect;
(fx) security interests on any Lien created to secure property acquired or held by the Lessee or its Subsidiaries, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property acquiring such property; provided that (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(iw) any such Lien shall extend attaches -------- ---- to such property concurrently with or within 120 days after the acquisition thereof, (x) such Lien attaches solely to the item or items property so acquired in such transaction and other like assets in respect of which financing was provided by the same lender to the obligor of such Property Indebtedness, (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiy) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property, and (z) the principal amount of the Indebtedness secured by any and all such security interests in the aggregate could not reasonably be expected to cause a Material Adverse Effect;
(xi) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases -------- ---- are otherwise permitted hereunder;
(xii) 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 as to deposit accounts or other funds maintained with a creditor depository institution; provided -------- that (x) such deposit account is not a dedicated cash collateral ---- account and is not subject to restrictions against access by the Lessee or any Subsidiary in excess of those set forth by regulations promulgated by the FRB, and (y) such deposit account is not intended by the Lessee or any Subsidiary to provide collateral to the depository institution;
(xiii) Liens securing other obligations of the Lessee and its Subsidiaries not to exceed in the aggregate at any one time outstanding ten percent (10%) of the total tangible assets of JFC and its Consolidated Subsidiaries, as would be shown in the consolidated financial statements of JFC and its Consolidated Subsidiaries as at the end of the fiscal quarter next preceding the date on which such determination is made;
(xiv) Liens encumbering real property acquired after the date of this Master Agreement to the extent acquired pursuant to an option, right of first refusal, right of first offer or other similar contract right existing on the date of this Master Agreement and described on Schedule 5.2(a)(xiv); --------------------
(xv) Liens on the Lessee's interest in its customers' securities, provided, however, that if any such Lien shall at no time exceed an amount equal is subject to the lesser of -------- ------- regulation in any respect (Aincluding, without limitation, as to security therefor) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (SEC, FRB, or improvement thereon) at the time of such acquisition any other Governmental Authority or constructionBusiness Association, and
(iii) any such Lien shall be created contemporaneously with the acquisition permitted pursuant to this Section 5.2(a), if and only if such Lien confirms -------------- in all respects to any applicable regulations, rules, orders or construction directions of such Propertyany thereof; and
(gxvi) Leases of property entered into with third party lessors in addition to the Liens permitted ordinary course of business by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company Lessee or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3as lessee, which are treated as operating leases under GAAP.
Appears in 1 contract
Samples: Master Agreement (Jones Financial Companies Lp LLP)
Limitation on Liens. The Company Borrower will notnot incur, create, assume, or permit to exist, and will not permit any of its Restricted Subsidiaries toSubsidiary to incur, directly or indirectly create, incurassume, assume or permit to exist (upon the happening of a contingency or otherwise) exist, any Lien on upon any of its property, assets, or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens disclosed on Schedule 6 hereto;
(b) Liens in favor of the Bank;
(c) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of the Borrower or the Subsidiaries to use such assets in their respective businesses;
(d) Liens for taxes, assessments assessments, or other governmental charges which are not delinquent or which are being contested in good faith and for which adequate reserves have been established;
(e) Liens of mechanics, materialmen, warehousemen, carriers, or other similar statutory Liens (including statutory landlord's Liens) securing obligations that are not yet due and payable or the payment of which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, are incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;business; and
(df) Liens (resulting from good faith deposits to secure payments of workmen's compensation or other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefitsprograms, or (ii) to secure (the performance of reinsurance agreements or to obtain letters of credit that secure) secure payments to utilities or the performance of tenders, statutory obligations, surety bonds, and appeal bonds, bids, leases contracts (other than Capitalized Leasesfor payment of Debt), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or leases made in connection with the borrowing ordinary course of moneybusiness.
(g) Purchase money liens, purchase money security interests or title retention arrangements upon or in any equipment acquired or held by the obtaining Borrower in the ordinary course of advances business to secure purchase money indebtedness incurred solely for the purpose of financing the acquisition of such equipment; provided that such purchase money indebtedness does not exceed limitations contained in clause (d) of Section 9.1 hereof; and provided, further, that such purchase money liens, purchase money security interests or credit or the payment of the deferred purchase price of Propertytitle retention arrangements shall attach only to equipment so acquired and shall not attach to any other Collateral;
(eh) Attachment and judgment Liens existing on the date not constituting an Event of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentDefault under Section 11(g) or 11(h);
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely Inchoate Liens arising under ERISA to secure the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms contingent liability of the instrument originally creating such Lien, other Property (Borrower or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such PropertySubsidiary; and
(gj) in addition to Liens renewing and extending the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiaryhereunder, provided that no such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Lien is expanded to cover any additional property.
Appears in 1 contract
Samples: Loan Agreement (Pizza Inn Inc /Mo/)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:: Old Dominion Freight Line, Inc. Note Purchase Agreement
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Subsidiary to the Company and its Restricted Subsidiaries referred or to in Exhibit B to the First Amendmenta Subsidiary;
(f) any Lien created Liens existing as of the date of Closing and reflected in Schedule 10.4;
(g) Liens incurred after the date of Closing given to secure the payment of all or any part of the purchase price, or the Debt incurred to secure Debt finance the payment of such purchase price, in either case incurred or assumed to pay all in connection with the acquisition, construction or any part improvement of the purchase price or cost of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property (or improvements thereon) at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property (or improvements thereon) acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed the date lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of the First AmendmentCompany to whom authority to enter into the transaction has been delegated by the board of directors of the Company); Old Dominion Freight Line, Inc. Note Purchase Agreement and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default would exist;
(iiii) any such extensions, renewals or replacements of any Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses subparagraphs (a) through e), (f), inclusive, (g) and (h) of this Section 4.410.4, Liens provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on Property (other than accounts receivable or inventory after the date of any Companyextension, renewal or replacement, (iii) at such time and immediately after giving effect thereto, the Company or its Subsidiary could incur $1.00 of additional Consolidated Debt under Section 10.2; and (iv) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(j) Liens securing Priority Debt of the Company or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.310.3.
Appears in 1 contract
Samples: Note Purchase Agreement (Old Dominion Freight Line Inc/Va)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary (other than any Project Finance Subsidiary or any International Subsidiary) to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, “Permitted Liens”):
(a) any document or instrument in respect of goods or accounts receivable) Lien existing on property of the Company or any Subsidiary on the Execution Date and set forth in Schedule 7.01 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.07;
(bd) any attachment carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s, operators’ (including Liens arising under operating, pooling or judgment Lienunitizing agreements of a scope and nature customary in the oil and gas industry) or other similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, unless which proceedings have the judgment it secures shall noteffect of preventing the forfeiture or sale of the property subject thereto, within 30 days after and for which adequate reserves are maintained on the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration books of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)Person;
(ce) statutory Liens (other than any Lien imposed by ERISA) consisting of landlords and Liens pledges or deposits required in the ordinary course of carriersbusiness under workers’ compensation laws, warehousemen, mechanics, materialmen unemployment insurance and other social security or retirement benefits, or similar Lienslegislation;
(f) Liens on the property of the Company or its Subsidiaries securing (i) the non-delinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety, reclamation and appeal bonds, and (iii) other non-delinquent obligations of a like nature, in each case, incurred in the ordinary course of business for sums business, provided all such Liens in the aggregate would not yet due and payable or the payment of which is not at the time required by Section 4.13(even if enforced) cause a Material Adverse Effect;
(dg) Liens consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively stayed and the aggregate amount of the obligations secured by all such liens for the Company and its Subsidiaries (other than any Lien imposed by ERISAProject Finance Subsidiary) does not exceed $50,000,000 at any time;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationswhich, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fi) Liens on assets of Persons which become Subsidiaries after the Execution Date or liens existing on any Lien property acquired by the Company or any Subsidiary at the time such property is acquired, provided that (A) such Liens existed at the time the respective Persons became Subsidiaries or at the time such property was acquired, as applicable, and were not created in anticipation thereof and (B) such Liens shall extend solely to secure the property so acquired and to identifiable proceeds thereof, and shall not attach to any other property of the Company or its Subsidiaries;
(j) purchase money security interests on any real or personal property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any such Lien shall extend attaches to such property concurrently with or within 20 days after the acquisition thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property and (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured thereby does not exceed 100% of the cost of such property;
(k) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(l) 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 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 Company in excess of those set forth by regulations promulgated by the FRB, and (ii) such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(m) Liens arising in connection with Securitization Transactions; provided that the amount of all Securitization Obligations shall not at any time exceed $75,000,000;
(n) Liens on the stock or other equity interests of any Project Finance Subsidiary to secure obligations of such Project Finance Subsidiary (provided that the agreement under which any such Lien is created shall at no time exceed an amount equal expressly state that it is non-recourse to the lesser pledgor);
(o) Liens securing Indebtedness of (A) the cost a Subsidiary owed to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and;
(iiip) any such Lien shall be created contemporaneously with other Liens securing Indebtedness otherwise permitted herein not exceeding $20,000,000 in the acquisition or construction of such Propertyaggregate; and
(gq) in addition to the Liens any Lien renewing, extending or refunding any Lien permitted by the preceding clauses paragraph (a) through (f), inclusive, (i) or (j) of this Section 4.4, Liens on Property 7.01; provided that (other than accounts receivable or inventory of any Companyi) securing Priority Debt the principal amount of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted Indebtedness secured by the applicable limitations set forth in Section 4.2 subject Liens is not increased over the amount of the Indebtedness secured thereby immediately prior to such extension, renewal or refunding, (ii) such Lien is not extended to any other property and 4.3(iii) immediately after such extension, renewal or refunding, no Default or Event of Default would exist.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (any Lien upon the happening of a contingency Collateral, except those created by or otherwise) in accordance with the Loan Documents. In addition, the Company shall not, and shall not suffer or permit any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, "Permitted Liens"):
(a) (i) any document or instrument in respect of goods or accounts receivable) Lien on property of the Company or any Subsidiary on the Closing Date and set forth in Schedule 7.2 securing Indebtedness outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or date and (ii) any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:Lien securing Indebtedness incurred after the Closing Date;
(ab) any Lien created under any Loan Document or pursuant to Section 5.5 of the Overall Contract;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.8, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens consisting of judgment or retirement benefitsjudicial attachment liens, or provided that the enforcement of such Liens is effectively stayed and all such liens in the aggregate at any time outstanding for the Company and its Subsidiaries do not exceed $100,000;
(iig) to secure (or to obtain letters of credit that secure) the performance of tenderseasements, statutory obligationsrights-of-way, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fh) Liens on assets of corporations which become Subsidiaries after the date of this Agreement, provided, however, that such Liens existed at the time the respective corporations became Subsidiaries and were not created in anticipation thereof;
(i) purchase money security interests on any Lien created to secure property acquired or held by the Company or its Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such property; provided that
that (i) any such Lien shall extend attaches to such property concurrently with or within 20 days after the acquisition thereof, (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired or constructed andin such transaction, if required by the terms of the instrument originally creating such Lien, other Property and (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiiii) the principal amount of the Debt debt secured by any such Lien shall at no time thereby does not exceed an amount equal to the lesser 100% of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, andproperty;
(iiij) any Liens securing obligations in respect of capital leases on assets subject to such Lien shall be created contemporaneously with the acquisition or construction of leases, provided that such Propertycapital leases are otherwise permitted hereunder; and
(gk) in addition Liens arising solely by virtue of any statutory or common law provision relating to the Liens permitted banker's liens, 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 preceding clauses Company in excess of those set forth by regulations promulgated by the FRB, and (aii) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of such deposit account is not intended by the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by Subsidiary to provide collateral to the applicable limitations set forth in Section 4.2 and 4.3depository institution.
Appears in 1 contract
Samples: Credit Agreement (Cd Radio Inc)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property part of its property, whether now owned or asset hereafter acquired, other than the following (including, without limitation, any document or instrument in respect of goods or accounts receivable"Permitted Liens"):
(a) Liens existing on property of the Company or any Subsidiary (other than SAFECO Properties, Inc. and SAFECO Credit Company Inc.) on the Closing Date securing Indebtedness with an aggregate principal amount not to exceed $10,000,000 outstanding on such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:date;
(ab) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.136.07; provided, that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISA) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation;
(f) Liens on the property of the Company or retirement benefits, or any Subsidiary securing (ii) to secure (or to obtain letters of credit that securei) the non-delinquent performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations on surety bonds, and appeal bonds, bidsand (iii) other non-delinquent obligations of a like nature; in each case, leases incurred in the ordinary course of business, provided all such Liens in the aggregate could not (other than Capitalized Leases)even if enforced) reasonably be expected to cause a Material Adverse Effect;
(g) easements, performance bondsrights-of-way, purchase, construction or sales contracts restrictions and other similar obligationsencumbrances incurred in the ordinary course of business which, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fh) Liens arising solely by virtue of any Lien created statutory or common law provision relating to secure all banker's liens, rights of set-off or any part 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 Company in excess of those set forth by regulations promulgated by the purchase priceFRB, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property and (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed ii) such deposit account is not intended by the Company or a Restricted any Subsidiary after to provide collateral to the date of the First Amendment, provided thatdepository institution;
(i) Liens consisting of deposits made by any Insurance Subsidiary with the insurance regulatory authority in its jurisdiction of domicile or other statutory Liens or Liens or claims imposed or required by applicable insurance law or regulation against the assets of any Insurance Subsidiary, in each case in favor of all policyholders of such Lien shall extend Insurance Subsidiary and in the ordinary course of such Insurance Subsidiary's business;
(j) Liens securing obligations of SAFECO Properties, Inc. and SAFECO Credit Company Inc. and their Subsidiaries incurred in the ordinary course of business and attaching solely to the item or items property of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),Persons;
(iik) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost Liens securing obligations owed to the Company or such Restricted owed by any Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board Company to any of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyits other Subsidiaries; and
(gl) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (securing other than accounts receivable or inventory of any Company) securing Priority Debt Obligations of the Company or and its Subsidiaries not to exceed $100,000,000 in the aggregate at any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Safeco Corp)
Limitation on Liens. The Company Borrower will notnot incur, create, assume, or permit to exist, and will not permit any of its Restricted Subsidiaries toSubsidiary to incur, directly or indirectly create, incurassume, assume or permit to exist (upon the happening of a contingency or otherwise) exist, any Lien on upon any of its property, assets, or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) : Liens disclosed on Schedule 9.2 hereto and Liens in favor of the Agent for the benefit of the Lenders; Liens for taxes, assessments assessments, or other governmental charges which are not delinquent or which are being diligently contested in good faith and for which adequate reserves have been established; Liens of mechanics, materialmen, warehousemen, carriers, landlords or other similar statutory Liens securing obligations that are not yet due and payable or the payment of which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, are incurred in the ordinary course of business for sums not yet due and payable business; Liens resulting from good faith deposits to secure payments of workmen's compensation or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security programs or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, and appeal bonds, bids, leases contracts (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the for payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventoryDebt), or any improvement thereon, acquired or constructed by leases made in the Company or a Restricted Subsidiary after the date ordinary course of the First Amendmentbusiness; Purchase money Liens securing Permitted Debt described in Section 9.1(c), provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of that the Debt secured by any such Lien shall encumbers only the asset so purchased; Liens securing Permitted Debt described in Section 9.1(b); provided that, the Debt secured by any such Lien encumbers only the Real Property refinanced by such Permitted Debt; Liens on the Indemnity Accounts in favor of County Bank of Rehoboth Beach, Delaware; provided however, the aggregate amount held in the Indemnity Accounts will not at no any time exceed an amount equal to the lesser of (Ai) $1,500,000 or (ii) the cost greater of $50,000 or 120% of County Bank of Rehoboth Beach, Delaware's interest in all outstanding Pay-Day Advance Loans implemented with any of the Borrower and its Subsidiaries; provided further, however, that the Borrower shall not permit, and shall not permit any Subsidiary to permit, any amounts contributed, deposited or paid to either the Company Indemnity Accounts or the Litigation Fund Accounts to be drawn by the County Bank of Rehoboth Beach, Delaware in an aggregate amount in excess of $750,000 cumulatively for all periods of time during the term of this Agreement for the purposes of making certain payments in compliance with the Pay-Day Advance Loan Documents; Liens on the Litigation Fund Accounts in favor of County Bank of Rehoboth Beach, Delaware; provided however, the aggregate amount held in the Litigation Fund Accounts will not at any time exceed $50,000; provided further, however, that the Borrower shall not permit, and shall not permit any Subsidiary to permit, any amounts contributed, deposited or paid to either the Litigation Fund Accounts or the Indemnity Accounts to be drawn by the County Bank of Rehoboth Beach, Delaware in an aggregate amount in excess of $750,000 cumulatively for all periods of time during the term of this Agreement for the purposes of making certain payments in compliance with the Pay-Day Advance Loan Documents; and Financing statements filed in connection with operating lease transactions for computers. 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 Agent for the benefit of the Lenders) to encumber the assets subject to such Restricted 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 Subsidiary of the Property Borrower; (or improvement thereonii) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) subject to subordination provisions pay any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition Debt owed to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company Borrower or any Restricted other Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.;
Appears in 1 contract
Samples: Credit Agreement (Ezcorp Inc)
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13;appropriate proceedings; 2005 Arrow Electronics Credit Agreement
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with Indebtedness incurred pursuant to Section 11.2(h);
(g) any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted 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 in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the First AmendmentCompany or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided thatthat (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt a bank account of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by Subsidiary arising in connection with the applicable limitations set forth cash pooling arrangements referred to in Section 4.2 11.2(c); and
(j) Liens (not otherwise permitted hereunder) which secure obligations not exceeding (as to the Company and 4.3all Domestic Subsidiaries) a Dollar Equivalent Amount equal $40,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment this Agreement and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSchedule 5.15 hereto;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendmentthis Agreement, provided that
that (i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
Limitation on Liens. The Company will notnot itself, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, issue, assume or permit guarantee any Debt secured after the date hereof by pledge of, or mortgage or lien on (herein referred to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitationas "Lien"), any document or instrument in respect of goods or accounts receivable) Principal Property of the Company or any such Restricted Subsidiary or any shares of Capital Stock of or Debt of any Restricted Subsidiary, whether now owned without effectively providing that the Securities (together with, if the Company shall so determine, any other Debt of the Company or held such Restricted Subsidiary then existing or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the time required by Section 4.13;
(boption of the Company, prior to) any attachment or judgment Liensuch secured Debt, unless the judgment it secures so long as such secured Debt shall notbe so secured, within 30 days unless, after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of moneygiving effect thereto, the obtaining aggregate amount of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the all such secured Debt of the Company and its the Restricted Subsidiaries referred to Subsidiaries, would not at that time exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 10.04 shall not apply to, and there shall be excluded from secured Debt in Exhibit B to the First Amendment;any computation under this Section 10.04, Debt secured by:
(f1) Liens on any Lien created property or any interest therein, construction thereon or improvement thereto to secure all or any part of the purchase pricecosts incurred after the date hereof for surveying, exploration, drilling, mining or other extraction, development, construction, alteration, repair or improvement of, in, under or on such property or to secure Debt incurred to provide funds for any such purpose (it being understood that, in the case of oil, gas or assumed mineral properties, or interests therein, costs incurred after the date hereof for "development" shall include costs incurred for all facilities relating to pay such properties or to projects, ventures or other arrangements of which such properties form a part or which relate to such properties or interests, which facilities may include, without limitation, any drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, xxxxes, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements;
(2) Liens or the creation of encumbrances on an oil and/or gas or mineral producing property to secure obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to commitments of purchase or sale of, or the transportation or distribution of, the products derived from such property;
(3) Liens on drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, xxxxes, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; real and personal property used primarily for purposes other than those of Principal Properties; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements;
(4) Liens on property existing at the time of acquisition of such property or mortgages to secure the payment of all or any part of the purchase price of such property or cost to secure any Debt, incurred prior to, at the time of construction, or within 24 months after the acquisition of Property such property for the purpose of financing all or any part of the purchase price thereof;
(other than accounts receivable 5) Liens (a) in favor of the United States of America or inventory)any State thereof, or any improvement thereonother country, acquired or constructed any municipality therein or any political subdivision, department, agency or instrumentality of any of them to secure moneys borrowed from or by such authorities, whether or not such moneys are borrowed or the repayment thereof is guaranteed by the Company or by a Restricted Subsidiary after Subsidiary, including, without limitation, Liens to secure Debt issued, assumed or guaranteed in pollution control or industrial revenue bond financings, or (b) to secure the performance of any covenant or obligation to or in favor of or entered into at the request of such authorities where such security is required pursuant to any contract, order, direction, regulation or statute;
(6) Liens in existence prior to the date of the First Amendment, provided thathereof;
(i7) Liens by any such Lien shall extend solely Restricted Subsidiary pursuant to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of any trust deed or similar document entered into by such Restricted Subsidiary, or by a predecessor of such Restricted Subsidiary, prior to the instrument originally creating date when it became a Subsidiary;
(8) Liens existing on any of the properties of, or on any shares of Capital Stock or Debt of, a corporation (including, but not limited to, a Restricted Subsidiary) at the time when such Liencorporation becomes a Subsidiary or is consolidated with or merged into the Company or a Subsidiary or Liens existing upon property, other Property Capital Stock or Debt at the time of acquisition thereof;
(9) Liens which secure only indebtedness owing by a Subsidiary to the Company or by a Subsidiary or the Company to a Subsidiary;
(10) any extension, renewal or replacement (or improvement thereonsuccessive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) which to (9) inclusive, so long as such extension, renewal or replacement of such Lien is an improvement limited to all or is acquired for specific use in connection with any part of the same property, shares of Capital Stock or Debt that secured the Lien extended, renewed or replaced (plus improvements on such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereonproperty),;
(ii11) pledges or deposits under workmen's compensation, unemployment insurance or similar statutes, mechanics', workmen's, repairmen's, materialmen's, carriers' or other similar Liens arising in the principal amount ordinary course of business or deposits or pledges to obtain the Debt secured by release of any such Lien shall at no time exceed an amount equal Liens;
(12) Liens (a) created by or resulting from any litigation or other proceedings, including Liens arising out of judgments or awards against the Company or any Restricted Subsidiary, with respect to the lesser of (A) the cost to which the Company or such Restricted Subsidiary is in good faith prosecuting an appeal or proceeding for review, or (b) incurred by the Company or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the Property course of any legal proceeding to which the Company or such Restricted Subsidiary is a party;
(13) Liens for taxes or improvement thereon) so acquired assessments or constructed and (B) the fair market value (as determined governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings, landlord's Liens on property held under lease, and other Liens of a nature similar to those hereinabove described in this clause (13) which do not, in the board of directors opinion of the Company) Company or such Restricted Subsidiary, materially impair the use of such Property (property in the operation of the business of the Company or improvement thereon) at such Restricted Subsidiary or the time value of such acquisition or construction, andproperty for the purpose of such business;
(iii14) any such Lien shall be created contemporaneously easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the acquisition or construction ordinary conduct of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary; and
(15) Liens secured by pipeline assets of El Paso Natural Gas Company; and provided, provided further, that the following types of transactions, among others, shall not be deemed to create Debt secured by a Lien: the sale (including any forward sale) or other transfer of (i) oil, gas, gold or other minerals, whether in place or when produced, for a period of time until, or in an amount such Priority Debt shall be permitted by that, the applicable limitations set forth purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (ii) any other interest in Section 4.2 and 4.3property of the character commonly referred to as a "production payment, "ore payment", "royalty interest", "overriding royalty interest", or "mineral payment", or farmouts, the creation of working interest, joint operating or unitization agreements, or other similar transactions.
Appears in 1 contract
Limitation on Liens. The Company will not, not and will not permit any of its Restricted Subsidiaries to, directly Subsidiary to create or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency be incurred or otherwise) to exist, any Lien on its or with respect to their property or assets, including any Property or asset (including, without limitation, capital stock of any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or upon any income or profits therefrom, or assign transfer any property for the purpose of subjecting the same to the payments of obligations in priority to the payment of its or otherwise convey their general creditors, or acquire or agree to acquire, or permit any right Subsidiary to receive income acquire, any property or profitsassets upon conditional sales agreements or other title retention devices, unless the Notes are equally and ratably secured except:
(a) Liens for taxes, taxes and assessments or other governmental charges which are or levies not yet due or which are being contested in good faith by appropriate proceedings promptly initiated and payable or the diligently conducted in accordance with Section 9.4 hereof, provided that payment of which thereof is not at the time required by Section 4.139.4 hereof;
(b) Liens of or resulting from any attachment judgment or judgment Lienaward, unless the judgment it secures shall not, within 30 days after time for the entry thereof, have been discharged appeal or execution thereof stayed pending appeal, or petition for rehearing of which shall not have been discharged within 30 days after the expiration of any such stay (expired, or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment respect of which the Company or a Subsidiary shall at any time in good faith be prosecuting an appeal or a proceeding for a review shall have been secured, provided that payment thereof is not at the time required by Section 4.139.4 hereof;
(c) Liens incidental to the normal conduct of the business or the ownership of properties and assets of the Company or any Subsidiary (including Liens in connection with worker's compensation, unemployment insurance, old age pensions, other social security benefits or obligations and other like laws, warehousemen's, mechanics', materialmen's and attorney's liens and statutory landlord's liens) and Liens to secure statutory obligations, surety, penalty or appeal bonds or other Liens of like general nature incurred in the ordinary course of business and not in connection with the incurrence of Indebtedness and which do not in the aggregate materially impair the use of such property or assets in the operation of the business of the Company, and the Company and its Subsidiaries taken as a whole, or the value of such property or assets for the purposes of such business; provided in each case, the obligation secured is not overdue (or, with respect to warehousemen's, mechanics' and materialmen's lien, not overdue for a period longer than 30 days), or if so overdue, is being contested in good faith by appropriate actions or proceedings;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in existing at the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment date of the deferred purchase price of PropertyClosing and set forth on Schedule 5.15 hereto;
(e) Liens existing on any Lien renewing, extending or refunding any Lien permitted by paragraph (d) of this Section 10.7, PROVIDED that (i) the date principal amount of Indebtedness secured by such Lien immediately prior to such extension, renewal or refunding is not increased or the First Amendment maturity thereof reduced, (ii) such Lien is not extended to any other property, and securing the Debt (iii) immediately after such extension, renewal or refunding no Default or Event of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentDefault would exist;
(f) Liens on property or assets of any Subsidiary securing Indebtedness owing to the Company or to any of its Wholly-Owned Subsidiaries;
(i) any Lien created in property (other than the land and improvements comprising the Company's office building located at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxx 55435) or in rights relating thereto to secure any rights granted with respect to such property in connection with the provision of all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any a part of the purchase price or cost of the construction of such property created contemporaneously with, or within 180 days after, such acquisition or the completion of such construction, or (ii) any Lien in property existing in such property at the time of Property (other than accounts receivable acquisition thereof, whether or inventory), or any improvement thereon, acquired or constructed not the Indebtedness secured thereby is assumed by the Company or such Subsidiary, or (iii) any Lien existing in the property of a Restricted corporation at the time such corporation is merged into or consolidated with the Company or a Subsidiary after or at the date time of a sale, lease or other disposition of the First Amendmentproperties of a corporation or firm as an entirety or substantially as an entirety to the Company or a Subsidiary; provided, however, that the Indebtedness secured by any Lien permitted by this paragraph (g) shall not in the aggregate exceed 100% of the fair market value of the related property; and
(h) Liens in addition to those permitted by paragraphs (a) through (g) of this Section 10.7, provided that
that (i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(iiA) the aggregate principal amount of the Debt secured all Indebtedness permitted by any such Lien this paragraph (h) shall at no time exceed an amount equal to the lesser 10% of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed Consolidated Net Worth, and (B) the fair market value sum of (as determined in good faith i) the aggregate principal amount of all Indebtedness secured by Liens permitted by this paragraph (h), PLUS (ii) the board aggregate principal amount of directors of the CompanyIndebtedness secured by Liens permitted by paragraphs (d), (e), and (g) of such Property (or improvement thereon) at the time of such acquisition or constructionthis Section 10.7, and
PLUS (iii) any such Lien shall be created contemporaneously with the acquisition or construction aggregate amount of such Property; and
(g) in addition to the Liens all Indebtedness of Subsidiaries permitted by the preceding clauses paragraphs (a) through and (f), inclusive, c) of this Section 4.4, Liens on Property (other than accounts receivable or inventory 10.6 shall at no time exceed 10% of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Consolidated Total Capitalization.
Appears in 1 contract
Samples: Note Purchase Agreement (Analysts International Corp)
Limitation on Liens. The Company will Borrower shall not, and will shall not suffer or permit CHC or any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset part of its property (including, without limitation, any document or instrument in respect of goods or accounts receivable) the partnership units of the Company or any such Restricted SubsidiaryBorrower owned by CHC), whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) any Lien (other than a Lien on the Collateral) existing on property of the Borrower, CHC or any Subsidiary on the Closing Date that is described in Schedule 8.1 securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the payment of which extent that nonpayment thereof is not at the time required permitted by Section 4.137.7, provided that no notice of lien has been filed or recorded under the Code;
(bd) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and landlords', materialmen's, repairmen's or other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(de) Liens (other than any Lien imposed by ERISAERISA and other than on the Collateral) incurred consisting of pledges or deposits made required in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentlegislation;
(f) Liens (other than Liens on the Collateral) on the property of the Borrower, CHC or their Subsidiaries securing (i) the nondelinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) contingent obligations of a like nature; in each case, incurred in the ordinary course of business, provided all such Liens in the aggregate would not (even if enforced) cause a Material Adverse Effect;
(g) Liens (other than Liens on the Collateral) consisting of judgment or judicial attachment liens, provided that the enforcement of such Liens is effectively stayed and all such liens in the aggregate at any Lien time outstanding for the Borrower, CHC and their Subsidiaries do not exceed $1,000,000;
(h) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the businesses of the Borrower, CHC and their Subsidiaries; provided that any such easements, rights-of-way, restrictions and other similar encumbrances related to Eligible Real Property shall be subject to the Agent's prior written approval;
(i) Liens on assets of Persons that become Subsidiaries after the date of this Agreement, provided, however, that such Liens existed at the time the respective Persons became Subsidiaries and were not created to secure in anticipation thereof;
(j) purchase money security interests in equipment acquired or held by the Borrower, CHC or their Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, acquiring such equipment; provided that
that (i) any such Lien shall extend attaches to such property concurrently with or within 20 days after the acquisition thereof and (ii) such Lien attaches solely to the item or items of such Property (or improvement thereon) property so acquired in such transaction;
(k) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(l) Liens arising solely by virtue of any statutory or constructed andcommon law provision relating to banker's liens, if required 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 terms Borrower in excess of those set forth by regulations promulgated by the instrument originally creating such LienFRB, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
and (ii) such deposit account is not intended by the principal amount of Borrower, CHC or any Subsidiary to provide collateral to the Debt secured depository institution;
(m) Liens on real property used primarily in the hospitality business and acquired by the Borrower, CHC or any Subsidiary after the Closing Date that is not encumbered by any such Lien shall at no time exceed an amount equal to the lesser Deed of Trust; provided that (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iiii) any such Lien shall be created contemporaneously attaches to such real property concurrently with or within 20 days after the acquisition thereof or construction such Lien is to secure Indebtedness the proceeds of which are used to refinance acquisition Indebtedness with respect to such Propertyreal property, (ii) such Lien attaches solely to such real property and personal property located on such real property, as well as proceeds thereof, and (iii) such Acquisition is approved in writing by the Required Lenders; and
(gn) Liens on real property that (i) was acquired by the Borrower, CHC or any Subsidiary before the Closing Date, (ii) was not encumbered by any mortgage, deed of trust or similar instrument as of the Closing Date or the date such Lien attaches, or with respect to which any such encumbrance that existed on the Closing Date is removed or satisfied through the use of proceeds of the Loans or the initial public offering of the common stock of CHC, and (iii) is not encumbered by any Deed of Trust; provided that (iv) any such Lien is approved by the Required Lenders, (v) such Lien attaches solely to such real property and personal property located on such real property, as well as proceeds thereof, and (vi) the Net Issuance Proceeds from the Indebtedness incurred in addition connection with any such Liens are applied to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Loans in accordance with Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.32.6.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable) and Liens to secure the performance of bids, in each casetenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Propertythe Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Subsidiary to the Company and its Restricted Subsidiaries referred or to in Exhibit B to the First Amendmentanother Subsidiary;
(f) any Lien created Liens existing as of the date of the Tranche A Closing and reflected in Schedule 10.4; Xxx Xxxxxxxx Freight Line, Inc. Note Purchase Agreement
(g) Liens incurred after the date of the Tranche A Closing given to secure the payment of all or any part of the purchase price, or the Debt incurred to secure Debt finance the payment of such purchase price, in either case incurred or assumed to pay all in connection with the acquisition, construction or any part improvement of the purchase price or cost of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property (or improvements thereon) at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property (or improvements thereon) acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed the date lesser of (y) the cost of such acquisition, construction or improvement or (z) the Fair Market Value of such property (as determined in good faith by one or more officers of the First AmendmentCompany to whom authority to enter into the transaction has been delegated by the board of directors of the Company); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default would exist;
(iiii) any such extensions, renewals or replacements of any Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses subparagraphs (a) through e), (f), inclusive, (g) and (h) of this Section 4.410.4, Liens provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on Property (other than accounts receivable or inventory after the date of any Companyextension, renewal or replacement, (iii) at such time and immediately after giving effect thereto, the Company or its Subsidiary could incur $1.00 of additional Consolidated Debt under Section 10.2; and (iv) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(j) Liens securing Priority Debt of the Company or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.10.3. Xxx Xxxxxxxx Freight Line, Inc. Note Purchase Agreement
Appears in 1 contract
Samples: Note Purchase Agreement (Old Dominion Freight Line Inc/Va)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following ("Permitted Liens"):
(a) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment of which thereof is not at the time required permitted by Section 4.137.7;
(b) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lienother similar Liens arising in the Ordinary Course of Business which are not delinquent or remain payable without penalty or unless such lien is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and if such accrual or other appropriate provision, unless the judgment it secures if any, as shall not, within 30 days after the entry thereof, be required by GAAP shall have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)made therefor;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in incidental to the ordinary course conduct of its business or the ownership of its Property including (i) pledges or deposits in connection with workers' worker's compensation, unemployment insurance and other types of social security or retirement benefitslegislation, or (ii) deposits to secure (or to obtain letters of credit that secure) insurance, the performance of bids, tenders, contracts, leases, licenses, franchises and statutory obligations, surety bondseach in the Ordinary Course of Business, appeal bonds, bids, leases and (iii) other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case obligations which were not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertyproperty and which do not in the aggregate materially detract from the value of its Property or materially impair the use of such Property in the operation of its business;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 45 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 45 days after expiration of any such stay;
(e) Liens existing on easements, rights-of-way, restrictions, leases, sub-leases and other similar charges or encumbrances incurred in the date Ordinary Course of Business which, in each case, and in the aggregate, do not materially interfere with the ordinary conduct of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company or any Restricted Subsidiary;
(f) Liens on Property of any Restricted Subsidiary securing obligations of such Restricted Subsidiary owing to the Company or another Restricted Subsidiary;
(g) any Lien existing prior to the time of acquisition upon any Property acquired by the Company or any Restricted Subsidiary after the Closing Date through purchase, merger or consolidation or otherwise, whether or not assumed by the Company or such Subsidiary, or placed upon Property at (or within 30 days after) the later of the time of acquisition or the completion of construction by the Company or any Restricted Subsidiary to secure all or a portion of (or to secure Indebtedness incurred to pay all or a portion of) the purchase price thereof, provided that (i) any such Priority Debt shall be Lien does not encumber any other property of the Company or such Restricted Subsidiary, (ii) the Indebtedness secured by such Lien is not prohibited by the provisions of Section 8.5, (iii) the aggregate principal amount \(without duplication)\ of the Indebtedness secured by such Lien at no time exceeds 80% of the cost to the Company and its Restricted Subsidiaries of the Property subject to such Lien, and (iv) the aggregate outstanding principal amount (without duplication) of the Indebtedness secured by all such Liens and the Indebtedness of all Restricted Subsidiaries at no time (a) from June 30, 1996 to June 8, 1999, exceeds $25,000,000, and (b) from June 9, 1999 to the Revolving Termination Date, exceeds $50,000,000;
(h) Liens on the accounts, rights to payment for goods sold or services rendered that are evidenced by chattel paper or instruments, and rights against persons who guarantee payment or collection of the foregoing, and on the Company's inventory and on the proceeds (as defined in the UCC in any applicable jurisdiction) thereof securing the obligations of the Company permitted by subsection 8.5(d) and any extension, renewal, refunding or refinancing thereof;
(i) [any Lien existing on the applicable limitations Property of the Company or its Restricted Subsidiaries on the Closing Date and set forth in Section 4.2 Schedule 8.1 securing Indebtedness outstanding on such date] \from and 4.3after the time the Facilities Subsidiary becomes a Restricted Subsidiary, Liens on (x) the accounts, rights to payment for goods sold or services rendered that are evidenced by chattel paper or instruments (and rights against persons who guarantee payment or collection of the foregoing) of Plum Creek Manufacturing, L.P. and its Subsidiaries which are Restricted Subsidiaries, (y) the inventory of Plum Creek Manufacturing, L.P. and its Subsidiaries which are Restricted Subsidiaries and (z) the proceeds (as defined in the UCC in any applicable jurisdiction) thereof, in each case securing the obligations of Plum Creek Manufacturing, L.P. and such Restricted Subsidiaries under the Facility Subsidiary's Revolving Credit Facility (and any extension, renewal, refunding or refinancing thereof)\;
(j) any Lien renewing, extending, refunding or refinancing any Lien permitted by subsection (i) of this Section, provided that the principal amount secured is not increased and the Lien is not extended to other Property and further provided that the maturity of the Lien is not extended beyond the maturity date of the Indebtedness which, at the time the Lien was initially placed upon the Property secured thereby, Responsible Representatives declare would have been the maturity date of Indebtedness customary for the type of Property being financed; and
(k) Liens, other than those set forth above, that secure amounts that in the aggregate do not exceed $1,000,000.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which or claims that are not yet due delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and payable diligently concluded; provided that any reserve or the payment of which other appropriate provision as is not at the time required by Section 4.13in conformity with GAAP has been made therefor;
(b) any attachment or judgment LienLxxxx imposed by law, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers’, warehousemen’s, mechanics’, materialmen and materialmen’s, repairmen’s, landlord’s or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 30 days or the payment of which is not at the time required that are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISAERISA or any rule or regulation promulgated thereunder) incurred or deposits made in the ordinary course of business (i) in connection with workers' ’ compensation, unemployment insurance insurance, and other types of social security or retirement benefits, or security;
(iid) Liens to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, or appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchasedeposits to secure the performance of bids, construction trade contracts, government contracts, warranty requirements, leases or sales contracts and licenses or other similar obligationsobligations of a like nature or incurred in the ordinary course of business (including, in each case not incurred or made in connection with the borrowing of moneywithout limitation, the obtaining of advances or credit or the payment of the deferred purchase price of Propertylandlord Liens on leased real property);
(e) Liens existing on survey exceptions, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the date use of real property that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentsuch Person;
(f) Liens in existence on the Closing Date listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien shall at any Lien created time encumber any additional Property after the Closing Date and that the amount of Indebtedness secured thereby shall not be increased (except by an amount equal to secure all a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(g) Liens securing Indebtedness of the Borrower or any part other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the purchase priceacquisition of such fixed or capital assets, or to secure Debt incurred or assumed to pay all or (ii) such Liens shall not at any part of the purchase price or cost of construction, of time encumber any Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed the Property financed by such Indebtedness and (iii) the Company or a Restricted Subsidiary after amount of Indebtedness secured thereby shall not be increased;
(h) Liens created pursuant to the date of the First Amendment, provided thatSecurity Documents;
(i) any such Lien shall extend solely to interest or title of a lessor under any lease entered into by the item Borrower or items any other Subsidiary in the ordinary course of such Property its business and covering only the assets so leased;
(j) judgment liens securing judgments not constituting (or improvement thereonwhich would otherwise create) so an Event of Default;
(k) licenses of Intellectual Property in the ordinary course of business;
(l) liens on fixed assets existing at the time such fixed assets are acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with a Permitted Acquisition and not created in contemplation thereof;
(m) deposits in an aggregate amount not to exceed $5,000,000 at any one time outstanding made in the ordinary course of business to secure liability to insurance carriers;
(n) Liens in favor of customs and revenue authorities to secure payment of customs duties in connection with the importation of goods in the ordinary course of business and other similar Liens arising in the ordinary course of business;
(o) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(p) leases or subleases granted to third Persons not interfering with the ordinary course of business of the Borrower or any of its Subsidiaries;
(q) Liens on assets of a Subsidiary of the Borrower that is not a Subsidiary Guarantor securing Indebtedness of that Subsidiary; provided that such Indebtedness was permitted to be incurred by Section 6.2;
(r) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(s) Liens securing Indebtedness of the Borrower or any Subsidiary incurred pursuant to Section 6.2(g) to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such Capital Stock, (ii) such Liens do not at any time encumber any Property other than the Capital Stock of such acquired Person and (iii) the amount of Indebtedness secured thereby does not exceed $50,000,000;
(t) Liens securing Indebtedness of the Borrower or constructed Property (or improvement thereonany Subsidiary incurred pursuant to Section 6.2(g) or which is real Property being improved (m); provided that such Liens shall at all times be subject to the Second Lien Intercreditor Agreement;
(u) Liens not otherwise permitted by such acquired or constructed Property this Section 6.3, so long as neither (or improvement thereon),
i) the aggregate outstanding principal amount of the obligations secured thereby nor (ii) the principal amount aggregate Fair Market Value (determined as of the Debt secured by any date such Lien shall at no time exceed an amount equal to the lesser of (Ais incurred) the cost to the Company or such Restricted Subsidiary of the Property (assets subject thereto exceeds the greater of $25,000,000 or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board 1.00% of directors of the Company) of such Property (or improvement thereon) Consolidated Total Assets at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyone time; and
(gv) in addition Liens with respect to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt Indebtedness of the Company Borrower or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in other Subsidiary incurred pursuant to Section 4.2 and 4.36.2(o).
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Limitation on Liens. The Company Obligors will not, and will not permit any of its Restricted their Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company any Obligor or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, profits except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.1310.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’ s and other similar Liens for sums not yet due and payable) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business and not in connection with the borrowing of money;
(c) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the ownership of property or assets or the ordinary conduct of the business of any Obligor or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertystay;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Subsidiary (other than the Company and its Restricted Subsidiaries referred or HOT-Barbados) to in Exhibit B an Obligor or to the First Amendmenta Subsidiary;
(f) any Lien created Liens existing as of the Amendment No. 2 Effective Date and reflected in Schedule 11.5;
(g) Liens incurred after the Amendment No. 2 Effective Date given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of an Obligor or a Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property, the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or not assumed by an Obligor or a Subsidiary, shall not exceed the lesser of (x) the cost of such acquisition, construction or improvement or (y) the Fair Market Value of such property (as determined in good faith by one or more officers of an Obligor to whom authority to enter into the transaction has been delegated by the board of directors of such Obligor); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into an Obligor or a Subsidiary or its becoming a Subsidiary, or any improvement thereon, Lien existing on any property acquired by an Obligor or constructed by any Subsidiary at the Company time such property is so acquired (whether or a Restricted Subsidiary after not the date of the First AmendmentDebt secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien on any acquired property shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default would exist;
(iiii) Liens securing Debt on property or assets of any Obligor or its Subsidiaries which Liens were given after the Amendment No. 2 Effective Date, provided such Obligor makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to an agreement reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property;
(j) any such extensions, renewals or replacements of any Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through subparagraphs (f), inclusive, (g) and (h) of this Section 4.411.5, Liens provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased on Property (other than accounts receivable or inventory after the date of any Companyextension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; or
(k) Liens securing Priority Debt of the Company any Obligor or any Restricted Subsidiary, provided that the aggregate principal amount of any such Priority Debt shall be permitted by Section 11.4 and, provided further that no such Liens under this Section 11.5(k) may secure any obligations under the applicable limitations set forth in Section 4.2 and 4.3Bank Credit Agreement.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to documentation reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other similar Liens for sums not yet due and payable or being contested in good faith and for which appropriate reserves have been established in accordance with GAAP) and Liens to secure the performance of bids, tenders, leases or trade contracts or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business and not in connection with the borrowing of money;
(c) leases or subleases granted to others, easements, rights-of-way, restrictions and other similar charges or encumbrances, in each case incidental to the ownership of property or assets or the ordinary conduct of the business of the Company or any Restricted Subsidiary, and Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property;
(d) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertystay;
(e) Liens existing on the date of the First Amendment and securing the Debt of a Restricted Subsidiary to the Company and its or to another Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiary;
(f) any Lien created Liens existing on the Closing Date and reflected in Schedule 10.4;
(g) Liens incurred after the Closing Date given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Restricted Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or improvement thereon or Liens incurred within 365 days of such acquisition or completion of such construction or improvement; provided that (1) the Lien shall attach solely to the property acquired, purchased, constructed or improved, (2) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within 365 days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Debt secured by such Lien), the aggregate amount remaining unpaid on all Debt secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed the date lesser of the First Amendment, provided that
(i) the cost of such acquisition, construction or improvement or (ii) the Fair Market Value at the time such property is acquired or constructed or improvement of such property is completed, as the case may be, (3) the aggregate principal amount of all Debt secured by such Liens would be permitted by the limitation set forth in Section 10.1 and (4) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Restricted Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Restricted Subsidiary at the time such property is so acquired (whether or not the Debt secured thereby shall have been assumed); provided that (1) no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person becoming a Subsidiary or such acquisition of property, (2) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property property, (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii3) the aggregate principal amount of the all Debt secured by any such Lien shall at no time exceed an amount equal to Liens would be permitted by the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed limitation set forth in Section 10.1 and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon4) at the time of such acquisition incurrence and after giving effect thereto, no Default or construction, andEvent of Default shall have occurred and be continuing;
(iiii) Liens on property of a Securitization Entity incurred in connection with any transfer of an interest in leases or lease receivables or accounts or notes receivables which is permitted pursuant to Section 10.6 and which Liens are required to consummate a Permitted Securitization Transaction;
(j) any such extensions, renewals or replacements of any Lien permitted by the preceding paragraphs (f), (g) and (h) of this Section 10.4; provided that (1) no additional property shall be created contemporaneously encumbered by such Liens, (2) the unpaid principal amount of the Debt or other obligations secured thereby shall not be increased or the maturity thereof reduced and (3) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(k) Liens in favor of financial institutions against bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business, consistent with standard business practices in such foreign jurisdiction and not in connection with the acquisition borrowing of money, provided that such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or construction of such Propertyits Subsidiaries; and
(gl) in addition to the other Liens not otherwise permitted by the preceding clauses paragraphs (a) through (fk), inclusive, of this Section 4.4, Liens on Property 10.4 securing Debt (other than accounts receivable or inventory of any Company) securing Priority Debt of debt under the Company or any Restricted Subsidiary, Bank Credit Agreement); provided that (1) the aggregate principal amount of all Debt secured by such Priority Debt Liens shall be permitted by the applicable limitations set forth in Section 4.2 Sections 10.1 and 4.310.3 and (2) at the time of such incurrence and after giving effect thereto, no Default or Event of Default shall have occurred or be continuing.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is levies, or other statutory obligations, not at the time required delinquent or that are being contested in good faith by Section 4.13appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the books of Mid-Holdings or the applicable Restricted Subsidiary, as the case may be, in conformity with GAAP);
(bi) any attachment carriers’, warehousemen’s, landlords’, mechanics’, contractors’, materialmen’s, repairmen’s or judgment other like Liens imposed by law or arising in the ordinary course of business which secure amounts that are not overdue for a period of more than 60 days or if more than 60 days overdue, are unfiled and no action has been taken to enforce such Lien, unless or that are being contested in good faith by appropriate proceedings (provided, that adequate reserves with respect to such proceedings are maintained on the judgment it secures shall notbooks of the Group Members in conformity with GAAP), within 30 days after (ii) Liens of customs and revenue authorities to secure payment of customs duties in connection with the entry thereof, have been discharged importation of goods in the ordinary course of business and (iii) Liens on specific items of inventory or execution other goods and proceeds thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any Person securing such stay (Person’s obligations in respect of bankers’ acceptances or letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or such lesser period other goods in the ordinary course of time as applicable law allows a judgment creditor to levy on such judgment)business;
(c) (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit, surety bonds, performance bonds or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to Holdings or any Group Member;
(d) Liens incurred in connection with, or deposits by or on behalf of any Group Member to secure, the performance of self-insurance obligations (solely in the case of such self-insurance obligations, if and to the extent required by applicable Requirements of Law), supply chain financing arrangements, bids, trade contracts and governmental contracts (other than Indebtedness for borrowed money), leases, statutory Liens obligations, surety, stay, customs and appeal bonds, performance and/or return of landlords money bonds, completion guarantees and Liens other obligations of carriersa like nature (including those to secure health, warehousemensafety and environmental obligations) incurred in the ordinary course of business;
(e) easements, mechanicsrights-of-way, materialmen covenants, conditions and restrictions, trackage rights, restrictions (including zoning restrictions or similar rights reserved to or vested in any Governmental Authority to control or regulate the use of any real property), encroachments, protrusions and other similar Liens, in each case, encumbrances and title defects incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made that, in the ordinary course aggregate, do not materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the Property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date business of the First Amendment and securing the Debt Group Members taken as a whole; provided, that none of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentforegoing secures Indebtedness for borrowed money;
(f) Liens (i) in existence on the date hereof (or, for title insurance policies issued in accordance with Section 5.9, on the date of such policies) and either (x) listed on Schedule 6.3(f), in the case of Liens in existence on the date hereof, (y) disclosed on any title insurance policies obtained on Mortgaged Properties in connection with Mortgages executed and delivered after the date hereof or (z) that would be disclosed by an updated title report for any real property and (ii) any replacement, renewal or extension of any such Lien created permitted under subclause (i) of this clause (f); provided, that (I) such replaced, renewed or extended Lien does not extend to secure all any additional property other than (A) after-acquired property that is affixed or any part incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.2(c), and (B) proceeds and products thereof, and (II) the replacement, renewal or extension of the purchase priceobligations secured or benefited by such Liens is permitted by Section 6.2;
(g) Liens securing Indebtedness incurred pursuant to Section 6.2(c) (and related obligations, including Capital Lease Obligations); provided, that (i) such Liens (other than Liens securing Indebtedness that is Permitted Refinancing of Indebtedness originally incurred under Section 6.2(c)) shall be created within 270 days of the acquisition or replacement or completion of construction, installation, repair or improvement or refinancing of such fixed or capital assets, as applicable, (ii) such Liens do not at any time encumber any Property other than the Property acquired, constructed, installed, repaired, improved or financed by such Indebtedness when such Indebtedness was originally incurred, and the proceeds and products of and accessions to secure Debt incurred or assumed to pay all or any part such Property, and (iii) the principal amount of Indebtedness initially secured thereby is not more than 100% of the purchase price or cost of construction, installation, repair or improvement of Property such fixed or capital asset; provided, further, that, in each case, individual financings of equipment and other assets provided by one lender or lessor may be cross collateralized to other outstanding financings of equipment and other assets provided by such lender or lessor;
(other than accounts receivable h) Liens created pursuant to the Loan Documents (including Liens securing any Incremental Facility, Replacement Facility or inventoryExtended Term Loans), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that;
(i) any interest or title of a lessor or sublessor under any lease or sublease or real property license or sub-license entered into by any Group Member in the ordinary course of its business and covering only the assets so leased, subleased, licensed or sub-licensed;
(j) Liens in connection with attachments or judgments or orders in circumstances not constituting an Event of Default under Section 7.1(h);
(k) Liens existing on property at the time of its acquisition or existing on the property of a Person that becomes a Restricted Subsidiary of Mid-Holdings after the date hereof (including any replacements, renewals or extensions thereof); provided, that (i) any Indebtedness secured thereby is permitted by Section 6.2(g) or is Refinancing Indebtedness in respect thereof and (ii) such Lien shall extend Liens cover solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms Property of the instrument originally creating such Lien, other Person that became a Restricted Subsidiary and are not expanded to cover additional Property (other than proceeds and products thereof and accessions thereto);
(l) Liens securing (x) Indebtedness permitted under Section 6.2(h) or improvement thereonany Refinancing Indebtedness in respect thereof, (y) obligations arising under any Specified Hedge Agreements (as defined in the ABL Credit Agreement) entered into not for speculative purposes or (z) Cash Management Obligations (as defined in the ABL Credit Agreement) in the ordinary course of business; provided, that the relative Lien priority thereof is set forth in the Intercreditor Agreements;
(m) Liens on insurance policies and the proceeds thereof securing insurance premium financing permitted hereunder;
(n) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Group Member in the ordinary course of business;
(o) (i) Liens of a collection bank arising under Section 4-208 of the Uniform Commercial Code on the items in the course of collection, (ii) Liens attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and not for speculative purposes and (iii) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to accounts and cash and Cash Equivalents on deposit in accounts maintained by any Group Member (including any restriction on the use of such cash and Cash Equivalents or investment property), in each case under this clause (iii) granted in the ordinary course of business in favor of the banks or other financial or depositary institution with which such accounts are maintained, securing amounts owing to such Person with respect to Cash Management Services (including operating account arrangements and those involving pooled accounts and netting arrangements); provided, that, in the case of this clause (iii), unless such Liens arise by operation of applicable law, in no case shall any such Liens secure (either directly or indirectly) any Indebtedness for borrowed money;
(p) licenses and sublicenses of Intellectual Property granted by any Group Member in the ordinary course of business;
(q) UCC financing statements, PPSA financing statements or similar public filings that are filed as a precautionary measure in connection with operating leases or consignment of goods in the ordinary course of business;
(r) Liens on property rented to, or leased by, any Group Member pursuant to a Sale and Leaseback Transaction; provided, that (i) such Sale and Leaseback Transaction is an improvement permitted by Section 6.10, (ii) such Liens do not encumber any other property of Mid-Holdings or its Restricted Subsidiaries and the proceeds and products of and accessions to or is acquired for specific use such property, and (iii) such Liens secure only the Attributable Indebtedness incurred in connection with such acquired or constructed Property Sale and Leaseback Transaction;
(or improvement thereons) Liens on the assets of Non-Loan Party Subsidiaries that secure (i) Indebtedness of Non-Loan Party Subsidiaries permitted pursuant to Section 6.2 (and related obligations) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) obligations of Non-Loan Party Subsidiaries other than Indebtedness and incurred in the principal ordinary course of business;
(i) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt, or any Incremental Equivalent Debt, and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of. any of the foregoing, and (ii) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt or Incremental Equivalent Debt (in each case, as defined in the Junior Lien Credit Agreement as in effect as of the date hereof) and any Permitted Refinancing of, and any Guarantee Obligations by the Guarantors in respect of, any of the foregoing;
(u) good xxxxx xxxxxxx money deposits made in connection with a Permitted Acquisition or any other Investment (other than Investments under Section 6.7(q)) or letter of intent or purchase agreement permitted hereunder;
(v) Liens not otherwise permitted by this Section 6.3 so long as the aggregate amount of obligations secured thereby does not exceed the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser greater of (A) the cost to the Company or such Restricted Subsidiary $40.0 million and 3.00% of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) Consolidated Total Assets at the time of such acquisition or construction, andincurrence thereof;
(iiiw) any Liens securing Refinancing Indebtedness permitted by Section 6.2(v) (and related obligations) if such Lien shall be created contemporaneously Liens are permitted to secure such Indebtedness in accordance with the acquisition definition of “Refinancing Indebtedness”;
(x) Liens in favor of Mid-Holdings, the Borrower or construction any Subsidiary Guarantor securing intercompany Indebtedness permitted hereunder;
(y) Liens (i) on cash advances or deposits in favor of the seller of any property to be acquired in a Permitted Acquisition or an Investment permitted pursuant to Section 6.7 to be applied against the purchase price for such Investment or (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under Section 6.5, in each case, solely to the extent such Investment or Disposition, as the case may be, would have been permitted on the date of the creation of such PropertyLien;
(i) Liens deemed to exist in connection with Investments in repurchase agreements under Section 6.7; provided, that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement, and (ii) reasonable customary initial deposits and margin deposits and similar Liens attaching to brokerage accounts maintained in the ordinary course of business and not for speculative purposes;
(aa) Liens that are customary contractual rights of setoff relating to purchase orders and other agreements entered into with customers of any Group Member in the ordinary course of business;
(bb) Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Group Members;
(cc) ground leases in respect of real property on which facilities owned or leased by any Group Member are located;
(dd) Liens on Permitted Receivables Financing Assets securing any Permitted Receivables Financing; and
(gee) Liens securing obligations in addition to respect of trade-related letters of credit permitted under Section 6.2 and incurred in the Liens permitted by the preceding clauses (a) through (f), inclusive, ordinary course of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt business of the Company Group Members and covering the goods (or any Restricted Subsidiary, provided that the documents of title in respect of such Priority Debt shall be permitted goods) financed by such letters of credit and the applicable limitations set forth in Section 4.2 proceeds and 4.3products thereof.
Appears in 1 contract
Samples: Senior Lien Term Loan Credit Agreement (Forterra, Inc.)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 30 days or the payment of which is not at the time required that are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or legislation;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on easements, rights-of-way, restrictions and other similar encumbrances incurred in the date ordinary course of business that, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing Property subject thereto or materially interfere with the Debt ordinary conduct of the Company and business of the Borrower or any of its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 6.3(f), securing Indebtedness permitted by Section 6.2(d), provided that no such Lien is spread to cover any Lien created to secure all additional Property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any part other Subsidiary incurred pursuant to Section 6.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the purchase priceacquisition of such fixed or capital assets, or to secure Debt incurred or assumed to pay all or (ii) such Liens do not at any part of the purchase price or cost of construction, of time encumber any Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed the Property financed by such Indebtedness and (iii) the Company or a Restricted Subsidiary after amount of Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the date of the First Amendment, provided thatSecurity Documents;
(i) Liens on cash and Cash Equivalents, in an aggregate amount not exceeding $7,000,000 at any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed andtime, if required by the terms securing obligations of the instrument originally creating such Lien, other Property (Borrower or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount any of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyits Subsidiaries under Specified Hedge Agreements; and
(gj) in addition to the Liens permitted any interest or title of a lessor under any lease entered into by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company Borrower or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by other Subsidiary in the applicable limitations set forth in Section 4.2 ordinary course of its business and 4.3covering only the assets so leased.
Appears in 1 contract
Samples: Credit Agreement (Infinity Property & Casualty Corp)
Limitation on Liens. The Except as otherwise specified as contemplated by Section 301 for Securities of any series, so long as any Securities of any series are Outstanding, the Company will not, and will not permit any of its Restricted Subsidiaries to, directly create or indirectly create, incur, assume or permit suffer to exist (any lien upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (of its properties, including, without limitation, any document shares of any class of equity security of any Significant Subsidiary to secure or instrument provide for the payment of any Debt without also securing such Outstanding Securities, and all other Debt entitled to be so secured, equally and ratably with such Debt; provided, however, that this restriction shall not apply to: liens in respect existence on the date of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens this Indenture; liens for taxes, assessments or other governmental charges or levies to the extent not past due or which are not yet due being contested in good faith by appropriate proceedings diligently conducted and payable or for which the Company has provided adequate reserves for the payment thereof in accordance with generally accepted accounting principles; pledges or deposits in the ordinary course of which is business to secure obligations under workers' compensation laws or similar legislation; other pledges or deposits in the ordinary course of business, other than for Debt, that, in the aggregate are not at material to the time required Company; purchase money mortgages or other purchase money security interests upon or in any property acquired or held by Section 4.13;
(b) any attachment the Company in the ordinary course of business to secure the purchase price of such property or judgment Lien, unless to secure Debt incurred solely for the judgment it secures shall not, within 30 days after purpose of financing the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration acquisition of any such stay (or property; liens imposed by law such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemenmaterialmen's, mechanics', materialmen carriers', workers' and repairmen's liens and other similar Liens, in each case, incurred liens arising in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required currently being contested in good faith by Section 4.13;
(d) Liens (appropriate proceedings diligently conducted; attachment, judgment or other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) similar liens arising in connection with workers' compensationcourt proceedings, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit provided that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationssuch liens, in each case the aggregate, shall not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries exceed $50,000,000 at any one time outstanding; other liens not otherwise referred to in Exhibit B to the First Amendment;
clauses (f1) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property through (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment7) above, provided that
that such liens in the aggregate, shall not exceed $100,000,000 at any one time outstanding; and liens created for the sole purpose of extending, renewing or replacing in whole or in part Debt secured by any lien referred to in clauses (i1) any such Lien shall extend solely to the item or items of such Property through (or improvement thereon6) so acquired or constructed andabove, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) provided that the principal amount of the Debt secured by any such Lien liens shall at no time not exceed an the principal amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) Debt so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) secured at the time of such acquisition extension, renewal, replacement and that such extension, renewal or construction, and
(iii) any such Lien replacement shall be created contemporaneously with limited to all or a part of the acquisition property or construction Debt that secured the lien so extended, renewed or replaced, and any improvements on such properties; provided, however, that the Company cannot place any lien permitted under the foregoing clauses (1) through (9) upon any shares of such Property; and
(g) in addition any class of equity security of any Significant Subsidiary without simultaneously, equally and ratably securing the Outstanding Securities. In case the Company shall propose to create or suffer to exist any lien upon its properties, including any shares of any class of equity security of any Significant Subsidiary, to secure or provide for the Liens payment of any Debt, other than as permitted by the preceding clauses subsection (a) through of this Section, the Company will prior thereto give written notice thereof to the Trustee, and the Company will prior to or simultaneously with such creation, or incurrence, by supplemental indenture executed to the Trustee (for to the extent legally necessary to another trustee or an additional or separate trustee), inclusivein form satisfactory to the Trustee, of this Section 4.4, Liens on Property effectively secure (for so long as such other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by so secured) all the applicable limitations set forth in Section 4.2 Securities equally and 4.3ratably with such Debt and with any other Debt similarly entitled to be equally and ratably secured.
Appears in 1 contract
Samples: Indenture (Entergy Arkansas Inc)
Limitation on Liens. The Company Such Borrower will notnot incur, create, assume, or permit to exist, and will not permit any of its Restricted Subsidiaries toCompany to incur, directly or indirectly create, incurassume, assume or permit to exist (upon the happening of a contingency or otherwise) exist, any Lien on upon any of its property, assets, or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right except the following (herein referred to receive income or profits, except:as "PERMITTED LIENS"):
(a) Existing Liens on the property described on Schedule 4 hereto to secure Permitted Debt;
(b) Liens in favor of the Agent for the benefit of the Agent, the Documentation Agent, the Banks and the Issuing Banks to secure the Obligations;
(c) Capital leases so long as such leases do not cover any property other than the property acquired in connection therewith, together with renewals and extensions thereof;
(d) Encumbrances consisting of minor easements, zoning restrictions, or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of such Borrower or the Subsidiaries to use such assets in their respective businesses, and none of which is violated in any material respect by existing or proposed structures or land use;
(e) The following to the extent no Lien has been filed in any jurisdiction or agreed to: Liens for taxes, assessments assessments, or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13payable;
(bf) The following to the extent no Lien has been filed in any attachment jurisdiction or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory agreed to: Liens of landlords and Liens of carriersmechanics, materialmen, warehousemen, mechanicscarriers, materialmen and or other similar Liens, in each case, statutory Liens securing obligations that are not yet due and are incurred in the ordinary course of business business; and landlord's Liens for sums rental not yet due and payable and which, to the extent the same encumbers any of the Collateral, has been waived or subordinated to the payment of which is not at the time extent required by Section 4.13the Security Agreements;
(dg) Liens (resulting from good faith deposits to secure payments of workmen's compensation or other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security programs or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, and appeal bonds, bids, leases contracts (other than Capitalized Leasesfor payment of Funded Debt), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or leases made in connection with the borrowing ordinary course of moneybusiness, the obtaining not in excess of advances or credit or the payment 10% of the deferred purchase price of Propertyaggregate amount due thereunder;
(eh) The following so long as the validity or amount thereof is being contested in good faith and by appropriate and lawful proceedings diligently conducted, reserve or other appropriate provision (if any) required by GAAP shall have been made, levy and execution thereon have been stayed and continue to be stayed, any thereof covering any Collateral must be subordinate to all Liens in favor of the Agent, and they do not in the aggregate materially detract from the value of the property of the Person in question, or materially impair the use thereof in the operation of its business: Claims and Liens for taxes due and payable; claims and Liens upon, and defects of title to, real or personal property (other than any of the Collateral), including any attachment of personal or real property or other legal process prior to adjudication of a dispute on the merits; claims and Liens of mechanics, materialmen, warehousemen, carriers, landlords, or other like Liens; and adverse judgments on appeal;
(i) Liens existing on the capital stock of any Subsidiary acquired after the date of the First Amendment and this Agreement in a transaction permitted hereunder, securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of constructionthereof to the seller, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
so long as either (i) the indebtedness secured thereby is subordinated to the Obligations in the manner and to the extent satisfactory to the Agent and the Required Banks and such Subsidiary shall have executed and delivered to the Agent a Security Agreement, Uniform Commercial Code financing statements, and assignment of deposit accounts, and a Guaranty in accordance with Article VII and an addendum to the Contribution and Indemnification Agreement by which such Subsidiary is made a party thereto, and shall have delivered to the Agent Uniform Commercial Code Lien searches and tax and judgment Lien searches for all appropriate names and jurisdictions as the Agent may require, or (ii) the indebtedness secured thereby was incurred in connection with an acquisition, no portion of the purchase price of which was financed with funds advanced by the Banks pursuant to this Agreement;
(j) Liens securing indebtedness for the purchase price of equipment; provided that any such Lien shall extend solely attach only to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Propertyasset purchased; and
(gk) Financing Statements filed in addition connection with operating lease transactions described in Uniform Commercial Code search reports previously furnished to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Agent.
Appears in 1 contract
Limitation on Liens. The Company will shall not, and will shall not permit any of its Restricted Domestic Subsidiaries to, directly or indirectly indirectly, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Company or its Domestic Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows a judgment creditor to levy on such judgment)more than 60 days or which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(e) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made which, in the ordinary course aggregate, are not substantial in amount and which do not in any case materially detract from the value of business (i) in connection with workers' compensation, unemployment insurance and other types of social security the property subject thereto or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt business of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentor such Domestic Subsidiary;
(f) Liens created in connection with Indebtedness incurred pursuant to Section 12.2(h);
(g) any Lien created existing on any property or asset prior to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Restricted 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 in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the First AmendmentCompany or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided thatthat (i) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iii) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt a bank account of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by Subsidiary arising in connection with the applicable limitations set forth cash pooling arrangements referred to in Section 4.2 12.2(c);
(j) Liens arising out of any judgment or award (i) with respect to which an appeal or proceeding for review is being prosecuted in good faith bv appropriate proceedings diligently conducted, and 4.3with respect to which a stay of execution is in effect; and (ii) that does not constitute an Event of Default under clause (i) of Section 13; and
(k) Liens (not otherwise permitted hereunder) which secure obligations not exceeding (as to the Company and all Domestic Subsidiaries) a Dollar Equivalent Amount equal to $50,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to upon any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable or that are being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the payment books of which is not at the time required by Section 4.13Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within ordinary course of business that are not overdue for a period of more than 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)that are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers’ compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens obligations, surety and appeal bonds, performance bonds and other obligations of landlords and Liens a like nature incurred in the ordinary course of carriersbusiness;
(e) easements, warehousemenrights-of-way, mechanics, materialmen restrictions and other similar Liens, in each case, encumbrances incurred in the ordinary course of business for sums that, in the aggregate, are not yet due substantial in amount and payable that do not in any case materially detract from the value of the Property subject thereto or materially interfere with the payment ordinary conduct of which is not at the time required by Section 4.13business of the Borrower or any of its Subsidiaries;
(df) Liens in existence on the date hereof listed on Schedule 8.3(f), securing Indebtedness permitted by Section 8.2(d), provided that no such Lien is spread to cover any additional Property after the Closing Date and that the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred pursuant to Section 8.2(c) to finance the acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any Property other than the Property financed by such Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased and (iv) the amount of Indebtedness initially secured thereby is not less than 80%, or more than 100% of the purchase price of such fixed or capital asset;
(h) Liens created pursuant to the Security Documents;
(i) Liens on fee-owned property of the Borrower and its Subsidiaries not subject to a Mortgage securing Indebtedness permitted by Section 8.2(f); and
(j) any Lien imposed interest or title of a lessor under any lease entered into by ERISA) incurred the Borrower or deposits made any other Subsidiary in the ordinary course of its business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) covering only the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) assets so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3leased.
Appears in 1 contract
Samples: Credit Agreement (U-Store-It Trust)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxestaxes not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a Material Adverse Effect, assessments or other governmental charges which are not yet due being contested in good faith by appropriate proceedings diligently conducted and payable adequate reserves with respect thereto are maintained on the books of Holding or its Subsidiaries, as the payment of which is not at the time required by Section 4.13case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums a period of more than 60 days or which are being contested in good faith by appropriate proceedings diligently conducted;
(c) Liens of landlords or of mortgagees of landlords arising by operation of law or pursuant to the terms of real property leases, provided that the rental payments secured thereby are not yet due and payable or the payment of which is not at the time required by Section 4.13payable;
(d) pledges, deposits or other Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and insurance, other types of social security benefits or retirement benefitsother insurance related obligations (including, without limitation, pledges or (ii) deposits securing liability to secure (insurance carriers under insurance or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leasesself-insurance arrangements), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on arising by reason of any judgment, decree or order of any court or other Governmental Authority, if appropriate legal proceedings which may have been duly initiated for the date review of such judgment, decree or order, are being diligently prosecuted and shall not have been finally terminated or the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentperiod within which such proceedings may be initiated shall not have expired;
(f) any Lien created Liens to secure all or any part the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds, judgment and like bonds, replevin and similar bonds and other obligations of a like nature incurred in the ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on the use of property, other similar encumbrances incurred in the ordinary course of business and minor irregularities of title, which do not materially interfere with the ordinary conduct of the purchase price, business of the Parent Borrower and its Subsidiaries taken as a whole;
(h) Liens securing or consisting of Indebtedness of the Parent Borrower and its Subsidiaries permitted by subsection 8.2(c) incurred to secure Debt finance the acquisition of fixed or capital assets or Indebtedness of the Parent Borrower and its Subsidiaries permitted by subsection 8.2(j) 90 incurred or assumed to pay all or any part of finance the purchase price of, or cost of constructionassumed in connection with, of Property any acquisition permitted by subsection 8.10, provided that (i) such Liens shall be created substantially simultaneously with such acquisition and (ii) such Liens securing such Indebtedness do not at any time encumber any property other than accounts receivable or inventory), or any improvement thereon, acquired or constructed the property financed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided thatsuch Indebtedness;
(i) any such Lien shall extend solely to the item Liens existing on assets or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) properties at the time of the acquisition thereof by the Parent Borrower or a Subsidiary which do not materially interfere with the use of the property subject thereto or extend to or cover any assets of the Parent Borrower or such acquisition Subsidiary other than the assets or construction, andproperty being acquired;
(iiij) Liens (i) in existence on the Effective Date and listed in Schedule 8.3(j) and other Liens securing Indebtedness of the Parent Borrower and its Subsidiaries permitted by subsection 8.2(e), provided that no such Lien is spread to cover any additional property after the Effective Date and that the amount of Indebtedness secured thereby is not increased except as permitted by subsection 8.2(e), or (ii) not otherwise permitted hereunder, all of which Liens permitted pursuant to this subsection 8.3(j) securing obligations not exceeding (as to the Parent Borrower and all its Subsidiaries) $5,000,000 in aggregate amount at any time outstanding;
(k) Liens securing Guarantee Obligations permitted under subsection 8.4(f) not exceeding (as to the Parent Borrower and all its Subsidiaries) $2,000,000 in aggregate amount at any time outstanding;
(l) Liens created pursuant to the Security Documents or otherwise securing Indebtedness permitted by subsection 8.2(a);
(m) Liens created pursuant to and in accordance with any Permitted Receivables Securitization;
(n) Liens on Intellectual Property and foreign patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, technology, know-how and processes to the extent such Liens arise from the granting of licenses to use such Intellectual Property and foreign patents, patent applications, trademarks, trademark applications, trade names, service marks, copyrights, technology, know-how and processes to any Person in the ordinary course of business of the Parent Borrower and its Subsidiaries;
(o) Liens on equipment in favor of lessees or conditional purchasers of such equipment leased on a Financing Lease basis or sold on a conditional basis by the Parent Borrower or any of its Subsidiaries to Agents or Owner/Operators in the ordinary course of business of the Parent Borrower and its Subsidiaries;
(p) any encumbrance or restriction (including, without limitation, put and call agreements) with respect to the Capital Stock of any joint venture or similar arrangement pursuant to the joint venture or similar agreement with respect to such Lien shall be created contemporaneously joint venture or similar arrangement, provided that no such encumbrance or restriction affects in any way the ability of the Parent Borrower or any of its Subsidiaries to comply with subsection 8.16(b); 91
(q) Liens on property subject to Sale and Leaseback Transactions permitted under subsection 8.12 and general intangibles related thereto;
(r) Liens on property of any Foreign Subsidiary of the acquisition or construction Parent Borrower securing Indebtedness of such PropertyForeign Subsidiary of the Parent Borrower permitted by subsection 8.2(i); and
(gs) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable assets or inventory properties of any Company) securing Priority Debt Insurance Subsidiary arising by operation of applicable insurance law or required to be imposed thereunder in the Company or any Restricted ordinary course of such Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3's insurance business.
Appears in 1 contract
Samples: Credit Agreement (Relocation Management Systems Inc)
Limitation on Liens. The Company Issuer will not, and will not permit while any of its Restricted Subsidiaries tothe Notes remain Outstanding, directly or indirectly create, incuror suffer to be created or to exist, assume any mortgage, lien, pledge, security interest or permit other encumbrance of any kind upon any property of any character of the Issuer whether now owned or hereafter acquired or upon any of the income or profits therefrom unless it shall make effective provision whereby the Notes then Outstanding shall be secured by such mortgage, lien, pledge, security interest or other encumbrance equally and ratably with any and all obligations and indebtedness thereby secured so long as any such obligations and indebtedness shall be so secured; provided, however, that nothing in this Section 9.08 shall be construed to exist prevent the Issuer from creating, or from suffering to be created or to exist, any mortgages, liens, pledges, security interests or other encumbrances, or any agreements, with respect to:
(1) Purchase money mortgages, or other purchase money liens, pledges or encumbrances of any kind upon property hereafter acquired by the happening Issuer, or mortgages, liens, pledges, security interests or other encumbrances of a contingency any kind existing on such property at the time of the acquisition thereof, or otherwise) any Lien on conditional sales agreements or other title retention agreements with respect to any Property property hereafter acquired; provided, however, that no such mortgage, lien, pledge, security interest or asset (includingother encumbrance, without limitationand no such agreement, shall extend to or cover any document or instrument in respect of goods or accounts receivable) other property of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:Issuer;
(a2) Liens, pledges, security interests, mortgages or other encumbrances of any kind on the shares of stock of a corporation which, when such liens, pledges, security interests, mortgages or other encumbrances arise, concurrently becomes a Subsidiary or liens, pledges, security interests, mortgages or other encumbrances on all or substantially all of the assets of a corporation arising in connection with the purchase or acquisition thereof by the Issuer, provided that such lien or other security interest shall not attach to any other assets of the Issuer;
(3) Liens for taxes, assessments or other assessments, governmental charges which are not yet due or levies; pledges or deposits to secure obligations under worker’s compensation or unemployment insurance laws or similar legislation; pledges or deposits to secure performance in connection with bids, tenders, contracts, performance bonds and payable or other similar arrangements (other than contracts for the payment of money) or leases to which the Issuer is not at a party; deposits to secure public or statutory obligations of the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemenIssuer; materialmen’s, mechanics’, materialmen and carriers’, workers’, repairmen’s or other similar Liens, in each case, incurred like liens in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred business, or deposits made to obtain the release of such liens; deposits to secure surety and appeal bonds to which the Issuer is a party, other pledges or deposits for similar purposes in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security business; liens created by or retirement benefits, resulting from any litigation or (ii) to secure (or to obtain letters of credit that secure) legal proceeding which at the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which time is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property currently being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined contested in good faith by appropriate proceedings; leases made, or existing on property acquired, in the board ordinary course of directors business; landlord’s liens under leases to which the Issuer is a party; zoning restrictions, easements, licenses, restrictions on the use of real property or minor irregularities in title thereto, which do not materially impair the use of such property in the operation of the Company) business of the Issuer or the value of such Property (or improvement thereon) at property for the time purpose of such acquisition business; the lien of the trustee under any indenture (including this Indenture), liens encumbering property or constructionassets under construction arising from progress or partial payments; liens arising from the filing of UCC financing statements regarding leases or consignments; any interest or title of a lessor in the property subject to any capitalized lease or operating lease; liens arising out of consignment or similar arrangements entered into in the ordinary course of business; and liens existing on March 31, and1994;
(iii4) any such Lien shall be created contemporaneously with Indebtedness assumed by the acquisition or construction Issuer of such Propertythe character specified in the first proviso of Section 9.09 hereof; andor
(g5) in addition to the Liens The replacement, extension or renewal of any mortgage, lien, pledge, security interest or other encumbrance, or of any agreement, permitted by the preceding foregoing clauses (a) through (f1), inclusive(2), of this Section 4.4(3), Liens on Property (other than accounts receivable 4), or inventory of any Companythe replacement, extension or renewal (without increase) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3indebtedness secured thereby.
Appears in 1 contract
Samples: Indenture (Qwest Corp)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries any\ Restricted\ Subsidiary to, directly create or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency be incurred or otherwise) to exist, any Lien on its or with respect to any Property their property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryassets, whether now owned or held or hereafter acquired, or upon any income or profits therefrom, or assign transfer any property for the purpose of subjecting the same to the payment of obligations in priority to the payment of its or otherwise convey their general creditors, or acquire or agree to acquire, or permit any\ Restricted\ Subsidiary to acquire, any right to receive income property or profitsassets upon conditional sales agreements or other title retention devices, except:except the following (collectively, the “Permitted Liens”):
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or delinquent, or the payment validity of which is not at the time required by Section 4.13Company or any\ Restricted\ Subsidiary shall be contesting in good faith, provided that any such contest will involve no risk of loss of any Material part of the property of the Company and the\ Restricted\ Subsidiaries taken as a whole;
(b) Liens of any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appealjudgments rendered, or claim filed, against the Company or any\ Restricted\ Subsidiary which the Company or any such\ Restricted\ Subsidiary shall not have been discharged within 30 days after the expiration be contesting in good faith, provided that any such contest will involve no risk of loss of any such stay (or such lesser period Material part of time the property of the Company and the\ Restricted\ Subsidiaries taken as applicable law allows a judgment creditor to levy on such judgment);whole; \Pengrowth Energy Corporation Note Purchase Agreement\
(c) statutory Liens of landlords and Liens of imposed or permitted by law, such as carriers’ liens, warehousemenbuilders’ liens, mechanics, materialmen materialmen’s liens and other liens, privileges or other charges of a similar Liens, in each case, nature incurred in the ordinary course of business for sums of the Company or any\ Restricted\ Subsidiary which relate to obligations not yet due or delinquent or, if due or delinquent, which Lien the Company and/or such\ Restricted\ Subsidiary shall be contesting in good faith, provided that any such contest will involve no risk of loss of any Material part of the property of the Company and payable or the payment of which is not at the time required by Section 4.13its\ Restricted\ Subsidiaries taken as a whole;
(d) undetermined or inchoate Liens arising in the ordinary course of and incidental to construction or current operations and in accordance with sound oil and gas industry practice in the jurisdiction in which the business is being conducted and not in connection with the borrowing of money and which, in any event, have not been filed pursuant to law against the Company or any\ Restricted\ Subsidiary or any of their respective properties or in respect of which no steps or proceedings to enforce such Liens have been initiated or which relate to obligations which are not due or delinquent or, if due or delinquent, are being contested in good faith by the Company or such\ Restricted\ Subsidiary; provided that any such contest will involve no risk of loss of any Material part of the property of the Company and the\ Restricted\ Subsidiaries taken as a whole;
(other than any Lien imposed by ERISAe) Liens incurred or deposits made created in the ordinary course of business (i) and in connection accordance with workers' compensationsound oil and gas industry practice in the jurisdiction in which the business is being conducted in respect of the joint operation of oil and gas properties or related production or processing facilities as security in favor of any other Person conducting the development or operation of the property to which such Liens relate, unemployment insurance for the Company’s or any\ Restricted\ Subsidiary’s portion of the costs and other types expenses of social security such development or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationsoperation but not, in each case not incurred or made any event, in connection with the borrowing of money; provided that such costs or expenses are not in any event due or delinquent or, if due or delinquent, are being contested in good faith by the obtaining Company or such\ Restricted\ Subsidiary or such contest will involve no risk of advances or credit or the payment loss of any Material part of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt property of the Company and its Restricted its\ Restricted\ Subsidiaries referred to in Exhibit B to the First Amendmenttaken as a whole;
(f) overriding royalty interests, net profit interests, reversionary interests and carried interests or other similar burdens on petroleum substance production in respect of the Company’s or any\ Restricted\ Subsidiary’s oil and gas properties that are entered into with or granted on an arm’s length basis to third parties in the ordinary course of business in compliance with Section 10.7 and for the purpose of carrying on the same and in accordance with sound oil and gas industry practice in the jurisdiction in which the business is being conducted, but not, in any Lien created to secure all event, in connection with the borrowing of money;
(g) Liens for penalties arising under ordinary course non-participation provisions of operating agreements in respect of the Company’s or any\ Restricted\ Subsidiary’s oil and gas properties, which either alone or in the aggregate do not materially detract from the value of any Material part of the purchase priceproperty of the Company and its\ Restricted\ Subsidiaries taken as a whole;
(h) easements, rights-of-way, servitudes, zoning or to secure Debt incurred other similar rights or assumed to pay all restrictions in respect of land held by the Company or any\ Restricted\ Subsidiary (including, without limitation, rights-of-way and servitudes for railways, sewers, drains, pipe lines, gas and water mains, electric light and power and telephone or telegraph or cable television conduits, poles, \Pengrowth Energy Corporation Note Purchase Agreement\ wires and cables) which, either alone or in the aggregate, do not Materially detract from the value of such land or impair in a Material way its use in the operation of the business of the Company and the\ Restricted\ Subsidiaries taken as a whole;
(i) Liens arising in connection with workers’ compensation, employment insurance, pension and employment laws or regulations and not in connection with the borrowing of money; provided that (i) the obligations secured are not due or delinquent or, if due or delinquent, are being contested in good faith and (ii) any such contest will involve no risk of loss of any Material part of the purchase price property of the Company and its\ Restricted\ Subsidiaries taken as a whole;
(j) Liens in favor of a public utility or cost any municipality or governmental or other public authority when required by such public utility or municipality or other Governmental Authority in the ordinary course of constructionthe business operations of the Company and the\ Restricted\ Subsidiaries; provided that any such Lien does not, either alone or in the aggregate, impair in a Material way the use of Property any property subject to such security interest in the conduct of the business of the Company and the\ Restricted\ Subsidiaries taken as a whole;
(k) the right reserved to or vested in any governmental body by the terms of any lease, license, grant or permit or by any statutory or regulatory provision to terminate any such lease, license, grant or permit or to require annual or other periodic payments as a condition of the continuance thereof;
(l) all reservations in the original grant from the Crown of any lands and premises or any interests therein and all statutory exceptions, qualifications and reservations in respect of title;
(m) Liens created or incurred in favour of a third party under any joint venture agreement, partnership agreement, operating agreement or similar agreement affecting the property which is the subject of such agreement, provided that (i) such agreement is entered into in the ordinary course of its business, on arms’ length commercial terms, not in connection with the borrowing of money and otherwise in accordance with industry practice, (ii) reciprocal Liens or equivalent remedies are provided by the other parties to such agreement for the benefit of the Company or any \Restricted \Subsidiary in circumstances where the creditworthiness of such other parties is essentially equivalent to or less than accounts receivable that of the Company or inventory)such\ Restricted\ Subsidiary, as applicable, and (iii) the Liens have not become the subject of realization actions under Applicable Law, or if they have: (1) such realization actions are being contested by the Company or a\ Restricted\ Subsidiary, as applicable, diligently and in good faith by appropriate proceedings, and (2) the final outcome of any improvement thereon, acquired or constructed such realization action could not reasonably be expected to have a Material Adverse Effect;
(n) Liens securing \Non-Recourse Debt\Subordinated Debt to the extent permitted by clause (b)(ii) of the definition of “Subordinated Debt”;
(o) Liens securing \Debt of the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such another Wholly-owned Restricted Subsidiary Subsidiary;\Swap Contracts in the ordinary course of business and not for speculative purposes; \Pengrowth Energy Corporation Note Purchase Agreement\ (p) Liens existing as of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors \date of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens Closing\Second Amendment Effective Date and described on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.Schedule \5.15\10.4;
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges which are taxes not yet due and payable 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 which is not at the time required by Section 4.13Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers', warehousemen's, mechanics', materialmen and materialmen's, repairmen's, landlord's or other similar Liens, in each case, incurred like Liens arising in the ordinary course of business which are not overdue for sums not yet due and payable a period of more than 60 days or the payment of which is not at the time required are being contested in good faith by Section 4.13appropriate proceedings;
(dc) Liens (other than any Lien imposed by ERISA) incurred pledges or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security legislation and deposits securing liability to insurance carriers under insurance or retirement benefits, or self-insurance arrangements;
(iid) deposits to secure (or to obtain letters of credit that secure) the performance of tendersbids, trade contracts (other than for borrowed money), leases, statutory obligations, surety bonds, and appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts bonds and other similar obligations, obligations of a like nature incurred in each case not incurred or made in connection with the borrowing ordinary course of money, the obtaining of advances or credit or the payment of the deferred purchase price of Propertybusiness;
(e) Liens existing on leases, subleases, easements, rights-of-way, encroachments and other survey defects, restrictions and other similar encumbrances incurred in the date ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the First Amendment and securing property subject thereto or materially interfere with the Debt ordinary conduct of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part business of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.Borrower;
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly createCreate, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of its property, assets or with respect to any Property or asset (revenues, including, without limitation, any document or instrument in respect the stock of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits Subsidiaries, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) The following, (i) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (ii) if a final judgment is entered and such judgment is discharged within thirty (30) days of entry, and in either case they do not materially impair the ability of the Borrower to perform its obligations hereunder or under the other Loan Documents:
(A) Claims or Liens for taxes, assessments or other governmental charges which are not yet due and payable and subject to interest or penalty, provided that the payment of which is not at the time Borrower maintains such reserves or other appropriate provisions as shall be required by Section 4.13GAAP and pays all such taxes, assessments or charges forthwith upon the commencement of proceedings to foreclose any such Lien;
(B) Claims, Liens or encumbrances upon, and defects of title to, real or personal property including any attachment of personal or real property or other legal process prior to adjudication of a dispute on the merits; and
(C) Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory nonconsensual Liens;
(b) any attachment pledges or judgment Liendeposits in connection with workers’ compensation, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)unemployment insurance and other social security legislation;
(c) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory Liens of landlords obligations, surety and Liens of carriersappeal bonds, warehousemen, mechanics, materialmen performance bonds and other similar Liens, in each case, obligations of a like nature incurred in the ordinary course of business for sums not yet due and payable or of the payment of which is not at the time required by Section 4.13Borrower;
(d) Liens (easements, rights-of-way, restrictions and other than any Lien imposed by ERISA) similar encumbrances incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationswhich, in each case the aggregate, are not incurred or made substantial in connection amount and which do not interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price business of Propertythe Borrower;
(e) Liens existing which were in existence on the date of the First Amendment hereof and securing the Debt of the Company shown on Schedule 6.3 and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentreplacements, extensions or replacements thereof;
(f) any Lien Liens on assets acquired by the Borrower in acquisitions permitted by Section 6.6 (which liens were in existence at the time of such acquisitions);
(g) Liens upon real property, which property was acquired after the Closing Date by the Borrower, each of which Liens existed on such property before the time of its acquisition or was created to secure all finance, refinance or any part of refund the purchase price, or to secure Debt incurred or assumed to pay all or any part of cost (including the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date ) of the First Amendmentrespective property; provided, provided that
(i) any however, that no such Lien shall extend solely to or cover any accounts receivable or inventory under any circumstances or any property of the item or items of such Property (or improvement thereon) Borrower other than the respective property so acquired or constructed andand improvements thereon, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) and the principal amount of the Debt indebtedness secured by any such Lien shall at no time not exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) respective property at the time of such acquisition or construction, andit was acquired;
(iiih) any Capital Leases as and to the extent permitted under this Agreement;
(i) purchase money security interests on capital equipment purchased in the ordinary course of business;
(j) Liens granted to secure indebtedness permitted by Section 6.2(vii) to the extent such Liens are also permitted under the Indenture;
(k) the Lien shall be created contemporaneously of the Indenture and other Liens in connection with the acquisition issuance of industrial revenue bonds or construction of pollution control bonds, to the extent such PropertyLiens are permitted under the Indenture; and
(gl) in addition to the Liens permitted by the preceding clauses subparagraphs (a) through (fk), inclusive, of this Section 4.46.3, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, Borrower provided that such Priority the aggregate principal amount of Debt secured by Liens pursuant to this Section 6.3(l) shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3not exceed $10,000,000.
Appears in 1 contract
Samples: Credit Agreement (Aqua America Inc)
Limitation on Liens. (a) NSA shall defend the Eligible Assets and the Collateral against, and shall take such other action as is necessary to remove, any Lien, security interest or claim on or to the Eligible Assets and the Collateral (other than the security interests created under this Loan Agreement and the Pledge Agreement), and NSA shall defend the right, title and interest of the Lenders in and to any of the Collateral against the claims and demands of all persons whomsoever.
(b) The Company will Borrower and NRFC shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary Guarantor or CDO Holdings IV to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect any Eligible Asset included in the Borrowing Base pursuant to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivableSection 2.03(d) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right other than Liens permitted pursuant to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by Section 4.13;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment7.15(c);.
(c) statutory The Borrower shall not, and shall permit any of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any Eligible Commercial Real Estate Property included in the Borrowing Base pursuant to Section 2.03(d) other than as follows:
(i) Liens of landlords and existing on the Closing Date which are identified in Schedule 7.15 to this Loan Agreement;
(ii) Liens in favor of carriers, warehousemen, mechanics, materialmen materialmen, lessors of personal property, tenants and other similar Liens, in each case, incurred landlords granted or arising in the ordinary course of business or as a matter of law for sums amounts not yet due overdue or being diligently contested in good faith by appropriate proceedings and payable or the payment of for which is not at the time required by Section 4.13adequate reserves in accordance with GAAP shall have been set aside on its books;
(diii) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' worker's compensation, unemployment insurance and or other types forms of social security governmental insurance or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(eiv) judgment Liens existing on the date which do not otherwise result in an Event of the First Amendment and securing the Debt Default under Section 8 of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendmentthis Loan Agreement;
(fv) any Lien created to secure all or any part easements, rights of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided thatway and zoning restrictions;
(ivi) any such Lien shall extend solely to the item Liens for Taxes not yet due or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property payable that are being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined diligently contested in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien appropriate proceedings and for which adequate reserves in accordance with GAAP shall be created contemporaneously with the acquisition or construction of such Propertyhave been set aside on its books; and
(gvii) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on securing Eligible Commercial Real Estate Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Indebtedness.
Appears in 1 contract
Samples: Master Loan, Guarantee and Security Agreement (Northstar Realty)
Limitation on Liens. The Company will shall not, and will shall not suffer or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following ("PERMITTED LIENS"):
(a) any Lien existing on property of the Company, ST Holdings or any Subsidiary on the Closing Date and set forth in SCHEDULE 8.01 securing or reflecting Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges which are not yet due and delinquent or remain payable without penalty, or to the extent that non-payment thereof is permitted by SECTION 7.07, provided that no notice of which is not at lien has been filed or recorded under the time required by Section 4.13Code;
(bd) any attachment carriers', warehousemen's, mechanics', landlords', materialmen's, repairmen's or judgment Lienother similar Liens arising in the ordinary course of business which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings, unless which proceedings have the judgment it secures shall not, within 30 days after effect of preventing the entry thereof, have been discharged forfeiture or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after sale of the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)property subject thereto;
(ce) statutory Liens (other than any Lien imposed by ERISA) consisting of landlords and Liens pledges or deposits required in the ordinary course of carriersbusiness in connection with workers' compensation, warehousemen, mechanics, materialmen unemployment insurance and other similar Lienssocial security legislation;
(f) Liens on the property of the Company or its Subsidiaries or ST Holdings securing (i) the non-delinquent performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, (ii) Contingent Obligations in connection with performance bonds, Surety Bonds and appeal bonds, and (iii) other non-delinquent obligations of a like nature, in each case, incurred in the ordinary course of business for sums business; PROVIDED that all such Liens in the aggregate could not yet due and payable or the payment of which is not at the time required by Section 4.13reasonably be expected to cause a Material Adverse Effect;
(dg) Liens (easements, rights-of-way, restrictions and other than any Lien imposed by ERISA) similar encumbrances incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligationswhich, in each the aggregate, are not substantial in amount, and which do not in any case not incurred materially detract from the value of the property subject thereto or made in connection materially interfere with the borrowing of money, the obtaining of advances or credit or the payment ordinary conduct of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt businesses of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First AmendmentSubsidiaries;
(fh) Liens securing obligations in respect of capital leases on assets subject to such leases, provided that such capital leases are otherwise permitted hereunder;
(i) Liens arising solely by virtue of any Lien created statutory or common law provision relating to secure all banker's liens, rights of set-off or any part of the purchase price, 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 secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed restrictions against access by the Company or a Restricted any Subsidiary after the date in excess of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required those set forth by regulations promulgated by the terms of the instrument originally creating such LienFRB, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
and (ii) the principal amount of the Debt secured such deposit account is not intended by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by Subsidiary to provide collateral to the applicable limitations set forth depository institution;
(j) Liens in Section 4.2 favor of customs and 4.3revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(k) Liens securing other obligations of the Company and its Subsidiaries not to exceed in the aggregate at any one time outstanding $500,000.
Appears in 1 contract
Limitation on Liens. The Company will notnot itself, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly create, incur, issue, assume or permit guarantee any Debt secured after the date hereof by pledge of, or mortgage or lien on (herein referred to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property or asset (including, without limitationas "Lien"), any document or instrument in respect of goods or accounts receivable) Principal Property 66 -60- of the Company or any such Restricted Subsidiary or any shares of Capital Stock of or Debt of any Restricted Subsidiary, whether now owned without effectively providing that the Securities (together with, if the Company shall so determine, any other Debt of the Company or held such Restricted Subsidiary then existing or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the time required by Section 4.13;
(boption of the Company, prior to) any attachment or judgment Liensuch secured Debt, unless the judgment it secures so long as such secured Debt shall notbe so secured, within 30 days unless, after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of moneygiving effect thereto, the obtaining aggregate amount of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the all such secured Debt of the Company and its the Restricted Subsidiaries referred would not at that time exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 10.04 shall not apply to, and there shall be excluded from secured Debt in any computation under this Section 10.04, Debt secured by:
(1) whether or not in whole or in part located or from time to in Exhibit B to time located at or on such properties, projects, ventures or the First Amendmentsitus of such other arrangements;
(f2) any Lien created Liens or the creation of encumbrances on an oil and/or gas or mineral producing property to secure all obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to commitments of purchase or sale of, or the transportation or distribution of, the products derived from such property;
(3) Liens on drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation millx, xxushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; real and personal property used primarily for purposes other than those of Principal Properties; and similar facilities and equipment of or associated with any part of the purchase priceforegoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements;
(4) Liens on property existing at the time of acquisition of such property or mortgages to secure Debt incurred or assumed to pay the payment of all or any part of the purchase price of such property or cost to secure any Debt, incurred prior to, at the time of construction, or within 24 months after the acquisition of Property such property for the purpose of financing all or any part of the purchase price thereof;
(other than accounts receivable 5) Liens (a) in favor of the United States of America or inventory)any state thereof, or any improvement thereonother country, acquired or constructed any municipality therein or any political subdivision, department, agency or instrumentality of any of them to secure moneys borrowed from or by such authorities, whether or 68 -62- not such moneys are borrowed or the repayment thereof is guaranteed by the Company or by a Restricted Subsidiary after Subsidiary, including, without limitation, Liens to secure Debt issued, assumed or guaranteed in pollution control or industrial revenue bond financings, or (b) to secure the performance of any covenant or obligation to or in favor of or entered into at the request of such authorities where such security is required pursuant to any contract, order, direction, regulation or statute;
(6) Liens in existence prior to the date of the First Amendment, provided thathereof;
(i7) Liens by any such Lien shall extend solely Restricted Subsidiary pursuant to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of any trust deed or similar document entered into by such Restricted Subsidiary, or by a predecessor of such Restricted Subsidiary, prior to the instrument originally creating date when it became a Subsidiary;
(8) Liens existing on any of the properties of, or on any shares of Capital Stock or Debt of, a corporation (including, but not limited to, a Restricted Subsidiary) at the time when such Liencorporation becomes a Subsidiary or is consolidated with or merged into the Company or a Subsidiary or Liens existing upon property, other Property Capital Stock or Debt at the time of acquisition thereof;
(9) Liens which secure only indebtedness owing by a Subsidiary to the Company or by a Subsidiary or the Company to a Subsidiary;
(10) any extension, renewal or replacement (or improvement thereonsuccessive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) which to (9) inclusive, so long as such extension, renewal or replacement of such Lien is an improvement limited to all or is acquired for specific use in connection with any part of the same property, shares of Capital Stock or Debt that secured the Lien extended, renewed or replaced (plus improvements on such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereonproperty),;
(ii11) pledges or deposits under workmen's compensation, unemployment insurance or similar statutes, mechanics', workmen's, repairmen's, materialmen's, carriers' or other similar Liens arising in the principal amount ordinary course of business or deposits or pledges to obtain the Debt secured by release of any such Lien shall at no time exceed an amount equal Liens;
(12) Liens (a) created by or resulting from any litigation or other proceedings, including Liens arising out 69 -63- of judgments or awards against the Company or any Restricted Subsidiary, with respect to the lesser of (A) the cost to which the Company or such Restricted Subsidiary is in good faith prosecuting an appeal or proceeding for review, or (b) incurred by the Company or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the Property course of any legal proceeding to which the Company or such Restricted Subsidiary is a party;
(13) Liens for taxes or improvement thereon) so acquired assessments or constructed and (B) the fair market value (as determined governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or constructionappropriate proceedings, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, landlord's Liens on Property property held under lease, and other Liens of a nature similar to those hereinabove described in this clause (other than accounts receivable or inventory of any Company13) securing Priority Debt which do not, in the opinion of the Company or any Restricted Subsidiary, provided materially impair the use of such property in the operation of the business of the Company or such Restricted Subsidiary or the value of such property for the purpose of such business;
(14) easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the ordinary conduct of the business of the Company or any Restricted Subsidiary; and
(15) Liens secured by pipeline assets of El Paso Natural Gas Company; and provided, further, that the following types of transactions, among others, shall not be deemed to create Debt secured by a Lien: the sale (including any forward sale) or other transfer of (i) oil, gas, gold or other minerals, whether in place or when produced, for a period of time until, or in an amount such Priority Debt shall be permitted by that, the applicable limitations set forth purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (ii) any other interest in Section 4.2 and 4.3property of the character commonly referred to as a "production payment", "ore payment", "royalty interest", "overriding royalty interest" or "mineral payment", or farmouts, the creation of working interest, joint operating or unitization agreements, or other similar transactions.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Recourse Subsidiaries to, directly or indirectly create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon any of their properties, assets (including shares of stock) or with respect to any Property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiaryrevenues, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, exceptexcept for:
(a) Liens for taxes, assessments or other governmental charges or claims which are not yet due delinquent or are being contested in good faith and payable by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Company or any of its Subsidiaries, as the payment of which is not at the time required by Section 4.13case may be, in accordance with GAAP;
(b) any attachment Liens of landlords, laborers and employees arising by operation of law and suppliers’, carriers’, warehousemens’, mechanics’, materialmens’, repairmens’ or judgment Lien, unless other like Liens arising in the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall ordinary course of business which are not have been discharged within 30 days after the expiration of any such stay (or such lesser overdue for a period of time as applicable law allows a judgment creditor to levy on such judgment)more than 45 days or, if more than 45 days overdue, which are being contested in good faith and by appropriate proceedings;
(c) statutory Liens of landlords and Liens of carrierspledges or deposits in connection with workers’ compensation, warehousemen, mechanics, materialmen unemployment insurance and other similar Lienssocial security legislation; provided, in each casehowever, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any of the Security Documents or any of the Unpledged International Property;
(d) deposits to secure the performance of tenders, bids, trade contracts (other than for borrowed money), leases, statutory obligations, stay, surety and appeal bonds, performance bonds, performance and completion guarantees and other obligations of a like nature incurred in the ordinary course of business for sums not yet due (including those to secure health, safety and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens environmental obligations); provided, however, that no such Lien shall encumber any Collateral (other than cash or Cash Equivalents) under any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price Security Documents or any of the Unpledged International Property;
(e) easements, reservations, licenses, rights-of-way, zoning restrictions and covenants, conditions and restrictions and other similar encumbrances or title defects or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which, in the aggregate, do not materially detract from the use of the property subject thereto or materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(f) Liens in favor of the United States of America for amounts paid by the Company or any of its Subsidiaries as progress payments under government contracts entered into by them; provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any of the Unpledged International Property;
(g) Liens existing on the date of this Agreement as set forth in Schedule 11.3(g);
(h) Liens under the First Amendment Security Documents (including, without limitation, Liens which secure Designated Eligible Obligations as provided for in the Intercreditor Agreement) or any other Lien securing all or any portion of the Payment Obligations, the Term Loan Payment Obligations or any refinancings thereof permitted by Section 11.2(a) or 11.2(s), or Designated Eligible Obligations or Term Loan Eligible Obligations, in each case, as provided for in the Intercreditor Agreement;
(i) attachment, judgment, order or other similar Liens arising in connection with court or arbitration proceedings; provided, however, that the same are being contested in good faith and securing any appropriate legal proceedings which may have been duly initiated for the Debt review of such judgment or similar Lien shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired and, in each case, shall not otherwise constitute an Event of Default under Section 12.1(k);
(j) other Liens incidental to the conduct of the business of the Company and its Restricted Subsidiaries referred to or the ownership of any of their assets not incurred in Exhibit B to connection with Indebtedness or Contingent Obligations, which Liens do not in any case materially detract from the First Amendmentvalue of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries; provided, however, that no such Lien shall encumber any Collateral under any Security Document or any of the Unpledged International Property;
(fk) Liens securing any Indebtedness permitted by Section 11.2(d) or any Liens replacing such permitted Liens; provided, however, that (i) no such Lien shall encumber any asset of the Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property and (ii) any such Lien created which secures reimbursement obligations under letters of credit not issued under this Agreement shall be limited to (A) the assets acquired or shipped with the support of such letter of credit and (B) any assets of a Foreign Subsidiary which are in the care, custody or control of such issuer of such letter of credit in the ordinary course of business;
(l) Liens securing any Indebtedness permitted by Section 11.2(g), Section 11.2(h) or obligations of any Foreign Subsidiary or a foreign branch of any Domestic Subsidiary principally doing business outside of the United States in respect of treasury, depository, overdraft and other cash management arrangements maintained with any Lender, any Term Loan Lender or any Affiliate of a Lender or a Term Loan Lender or any other Person reasonably acceptable to the Administrative Agent or any Liens replacing such permitted Liens; provided, however, that no such Lien shall encumber any asset of the Company or any of its Subsidiaries organized under the laws of a jurisdiction within the United States or any Collateral under any Security Document or any of the Unpledged International Property;
(m) Liens in the nature of counterpart deposits or pledges of cash deposits of the Company or any of its Subsidiaries to secure all Indebtedness of Foreign Subsidiaries of the Company or a foreign branch of a Domestic Subsidiary principally doing business outside of the United States, which Indebtedness is permitted pursuant to Section 11.2(k)); provided, however, that no such Lien shall encumber any Collateral under any of the Security Documents or any part of the purchase priceUnpledged International Property;
(n) Liens in favor of securities intermediaries, commodity intermediaries, brokers and dealers arising in connection with the acquisition or to secure Debt incurred or assumed to pay all or any part disposition of investments of the purchase price type permitted by Section 11.8; provided, however, that such Liens (i) attach only to such investments and (ii) secure only obligations incurred in the ordinary course and arising in connection with the acquisition or cost disposition of constructionsuch investments and not any obligation in connection with margin financing; and provided, further, that such Liens attach only to the property of Property the Company or its Subsidiary, as the case may be, for whose account any such obligations have been incurred;
(other than accounts receivable or inventory), or any improvement thereon, acquired or constructed o) Liens granted by the Company or any of its Subsidiaries (including the interest of a Restricted Subsidiary lessor under a Capital Lease and Liens to which any property is subject at the time, on or after the date hereof, of the First AmendmentCompany’s or such Subsidiary’s acquisition thereof) securing Indebtedness permitted under Section 11.2(l) and limited, provided thatin each case, to the property the acquisition, development, purchase, lease, repair, addition or improvement of which is financed or reimbursed with the proceeds of such Indebtedness or subject to such Capital Lease (or proceeds thereof or additional property in the nature of improvements thereto);
(p) Liens in the nature of counterpart deposits or pledges of cash deposits of the Company or any of its Subsidiaries to secure Indebtedness permitted pursuant to Section 11.2(m); provided, however, that the amount of any such deposit does not exceed the amount of the Indebtedness it secures;
(q) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(b);
(r) [Intentionally Omitted.];
(s) Liens (A) on the assets or property (including shares of Capital Stock) of a Subsidiary of the Company existing (or required pursuant to agreements existing) at the time such Subsidiary became a Subsidiary of the Company or (B) on any property at the time the Company or a Subsidiary of the Company acquired such property (including any acquisition by means of a merger or consolidation with or into the Company or any Subsidiary of the Company) in each case not incurred or created in connection with or in anticipation of such Subsidiary becoming a Subsidiary of the Company or such acquisition; provided, however, that such Liens do not extend to or cover any other property or assets of the Company or any of its Recourse Subsidiaries other than the proceeds of the assets or property described in clause (A) or (B) above and any improvements thereto or as otherwise permitted under this Section 11.3;
(t) 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 in the ordinary course of business;
(u) Liens that are contractual rights of set-off and other Liens arising as a matter of law (i) any such Lien shall extend solely relating to the item or items establishment of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Company or any Recourse Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company and its Recourse Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Company, the Company or any Recourse Subsidiary in the ordinary course of business;
(v) Liens on inventory or equipment of the Company or any Subsidiary granted in the ordinary course of business to the Company’s client or customer at which such inventory or equipment is located;
(w) Liens arising from precautionary UCC financing statement filings (or similar filings under other applicable law) regarding leases entered into by the Company or any Subsidiary in the ordinary course of business;
(x) Liens on Receivables and Related Assets incurred in connection with a Receivables Facility (other than the Capital Stock of any Receivables Subsidiary);
(y) leases, licenses, subleases and sublicenses of property granted by the Company and its Subsidiaries in the ordinary conduct of the business of the Company or any of its Subsidiaries and which do not secure any Indebtedness;
(z) Liens securing Indebtedness in respect of Permitted Refinancings permitted under Section 11.2 to the extent such Liens are permitted under clause (g) of the definition of “Permitted Refinancing”;
(aa) Liens granted in favor of issuers of documentary or trade letters of credit for the account of the Company or such Subsidiary or bankers’ acceptances, which Liens secure the reimbursement obligations of the Company or such Subsidiary on account of such letters of credit or bankers’ acceptances; provided that each such Lien is limited to (i) the assets acquired or constructed Property shipped with the support of such letter of credit or bankers’ acceptances and (ii) any assets of the Company or improvement thereonsuch Subsidiary which are in the care, custody or control of such issuer;
(bb) Liens on (i) the net proceeds of the incurrence of Indebtedness to secure any redemption, repurchase or defeasance obligations in respect of such Indebtedness or any other Indebtedness being refinanced with the proceeds of such Indebtedness and (ii) any additional cash to secure such redemption, repurchase or defeasance obligations in an amount which, when added to such net proceeds, is necessary to effect such redemption, repurchase or defeasance;
(cc) deposits in the ordinary course of business to secure liability to insurance carriers;
(dd) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 11.2; provided that such Liens do not extend to any assets other than those assets that are the subject of such repurchase agreement;
(ee) Permitted Junior Liens securing Indebtedness permitted by Section 11.2(o) or Section 11.2(p); provided, however, that, after giving effect to such Liens (and any Permitted Acquisition consummated in connection therewith, whether prior to or concurrently with such incurrence of such Liens), as of the last day of the most recent four consecutive fiscal quarters with respect to which is real Property being improved by such acquired financial statements shall have been delivered pursuant to Section 10.1, (i) the First Lien Secured Leverage Ratio of the Company and its Subsidiaries shall be less than or constructed Property (or improvement thereon),
equal to 4:00 to 1:00 on a pro forma basis and (ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal Company’s Senior Secured Leverage Ratio, calculated on a pro forma basis, is less than 5.5 to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property1.0; and
(gff) in addition to the additional Liens securing obligations which, together with all other obligations secured by Liens (excluding Liens permitted by the preceding clauses (a) through (f), inclusive, ee) above) at the time of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3determination do not exceed $15,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (Revlon Consumer Products Corp)
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, therefrom or assign or otherwise convey any right to receive income or profitsprofits (unless it makes, or causes to be made, effective provision whereby the Notes will be equally and ratably secured with any and all other obligations thereby secured, such security to be pursuant to documentation reasonably satisfactory to the Required Holders and, in any such case, the Notes shall have the benefit, to the fullest extent that, and with such priority as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property), except:
(a) Liens for taxes, property taxes and assessments or other governmental charges which are or levies and Xxxxx securing claims or demands of mechanics and materialmen; provided that payment thereof is not yet at the time required by Section 9.4;
(b) Liens incidental to the conduct of business or the ownership of properties and assets (including Liens in connection with worker’s compensation, unemployment insurance and other like laws, warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other Lien of like general nature, in any such case incurred in the ordinary course of business and not in connection with the borrowing of money; provided that (i) any such Lien secures only amounts not due and payable or the payment of which is being contested in good faith by appropriate actions or proceedings and (ii) any such Lien does not at materially impair the time required by Section 4.13business of the Company and its Subsidiaries taken as a whole or the value of the related property for the purposes of such business;
(bc) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other similar Liens, in each case, incurred in the ordinary course of business for sums not yet due and payable or the payment of which is not at the time required by Section 4.13stay;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment existing as of the deferred purchase price date of PropertyClosing and described on Schedule 5.15 hereto;
(e) Liens existing on survey exceptions or minor encumbrances, leases or subleases granted to others, easements or reservations, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the date use of real properties, (i) which are necessary for the conduct of the First Amendment and securing the Debt activities of the Company and its Restricted Subsidiaries referred to or which customarily exist on properties of corporations engaged in Exhibit B to similar activities and similarly situated and (ii) which do not in any event materially impair their use in the First Amendmentoperation of the business of the Company and its Subsidiaries taken as a whole or the value of such properties;
(f) any Lien Liens created or incurred after the date of the Closing given to secure all or any part the payment of the purchase priceprice incurred in connection with the acquisition or purchase or the cost of construction of property or of assets useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property or assets at the time of acquisition thereof or at the time of completion of construction, as the case may be, whether or not such existing Liens were given to secure Debt incurred or assumed to pay all or any part the payment of the acquisition or purchase price or cost of construction, as the case may be, of Property the property or assets to which they attach; provided that (other than accounts receivable i) the Lien shall attach solely to the property or inventory)assets acquired, purchased or any improvement thereonconstructed, acquired (ii) such Lien shall have been created or constructed incurred within 180 days of the date of acquisition or purchase or completion of construction, as the case may be, (iii) at the time of acquisition or purchase or of completion of construction of such property or assets, the aggregate amount remaining unpaid on all Debt secured by Liens on such property or assets, whether or not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed an amount equal to 100% of the lesser of the total purchase price or fair market value at the time of acquisition or purchase (as determined by a Responsible Officer of the Company) or the cost of construction on the date of completion thereof, (iv) Debt secured by any such Lien shall have been created or incurred within the First Amendmentapplicable limitations provided in Sections 10.1 and 10.2, and (v) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Event of Default would exist;
(g) any Lien existing on property or assets of a corporation at the time such corporation is consolidated with or merged into the Company or a Subsidiary or becomes a Subsidiary, or any Lien existing on any property or assets acquired by the Company or any Subsidiary at the time such property or assets are so acquired (whether or not the Debt secured thereby shall have been assumed), provided that
that (i) any each such Lien shall extend solely to the item property or items of such Property (or improvement thereon) assets so acquired or constructed andacquired, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the any Debt secured by any such Lien shall have been created or incurred within the applicable limitations provided in Sections 10.1 and 10.2, and (iii) at no the time exceed an amount equal of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Xxxx and after giving effect thereto and to the lesser application of the proceeds thereof, no Event of Default would exist;
(Ah) any extension, renewal or refunding of any Lien permitted by any of the cost preceding clauses (d), (f) or (g) of this Section 10.4 in respect of the same property theretofore subject to such Lien in connection with the extension, renewal or refunding of the Debt secured thereby; provided that (i) such extension, renewal or refunding of Debt shall be without increase in the principal amount remaining unpaid as of the date of such extension, renewal or refunding, (ii) such Lien shall attach solely to the Company or same such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition extension, renewal or constructionrefunding and after giving effect thereto, no Event of Default would exist;
(i) Liens securing Debt of a Subsidiary to the Company or a Wholly-owned Subsidiary;
(j) Liens incurred in connection with any transfer of an interest in accounts or notes receivable or related assets as part of a Qualified Receivables Transaction: and
(iiik) any such Lien shall be Liens created contemporaneously with or incurred after the acquisition or construction date of such Property; and
(g) the Closing given to secure Debt of the Company in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Companyj) securing Priority Debt of the Company or any Restricted Subsidiary, hereof; provided that (i) the aggregate amount of all Debt secured by such Priority Debt Liens shall be permitted by not exceed the greater of (1) $100,000,000 or (2) 20% of Consolidated Net Worth and, in all events, shall have been incurred within the applicable limitations set forth provided in Section 4.2 Sections 10.1 and 4.310.2 and (ii) at the time of creation, issuance, assumption, guarantee or incurrence of the Debt secured by such Lien and after giving effect thereto and to the application of the proceeds thereof, no Event of Default would exist.
Appears in 1 contract
Limitation on Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any Property property or asset (including, without limitation, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which that are not yet due and payable or the payment of which is not at the time required by Section 4.139.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not, within 30 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 60 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)stay;
(c) statutory Liens incidental to the conduct of landlords business or the ownership of properties and Liens of assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen materialmen’s and other similar LiensLiens for sums not yet due and payable or, if due and payable, are being contested in each casegood faith pursuant to appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP) and Liens to secure the performance of bids, tenders, leases, or trade contracts, or to secure statutory obligations (including obligations under workers compensation, unemployment insurance and other social security legislation), surety or appeal bonds or other Liens incurred in the ordinary course of business for sums and not yet due and payable or the payment of which is not at the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money;
(d) leases or subleases granted to others, easements, rights-of-way, licenses, encroachments, restrictions and other similar charges or encumbrances, in each case incidental to the obtaining ownership of advances property or credit assets or the payment ordinary conduct of the deferred purchase price business of Property;the Company or any of its Subsidiaries, or Liens incidental to minor survey exceptions and the like, provided that such Liens do not, in the aggregate, materially detract from the value of such property; Global Water Resources, Inc. Note Purchase Agreement
(e) Liens existing on the date securing Indebtedness of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B a Subsidiary to the First AmendmentCompany;
(f) any Lien created Liens existing as of the Closing Date and reflected in Schedule 10.5;
(g) Liens incurred after the Closing Date given to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part payment of the purchase price incurred in connection with the acquisition, construction or cost improvement of construction, of Property property (other than accounts receivable or inventory) useful and intended to be used in carrying on the business of the Company or a Subsidiary, including Liens existing on such property at the time of acquisition or construction thereof or improvement thereon or Liens incurred within 365 days of such acquisition or completion of such construction or improvement, provided that (i) the Lien shall attach solely to the property acquired, purchased, constructed or improved; (ii) at the time of acquisition, construction or improvement of such property (or, in the case of any Lien incurred within three hundred sixty-five (365) days of such acquisition or completion of such construction or improvement, at the time of the incurrence of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all Indebtedness secured by Liens on such property, whether or any improvement thereon, acquired or constructed not assumed by the Company or a Restricted Subsidiary after Subsidiary, shall not exceed the date lesser of (y) the cost of such acquisition, construction or improvement or (z) the fair market value of such property (as determined in good faith by one or more officers of the First AmendmentCompany to whom authority to enter into the transaction has been delegated by the board of directors of the Company); and (iii) at the time of such incurrence and after giving effect thereto, no Default or Event of Default would exist;
(h) any Lien existing on property of a Person immediately prior to its being consolidated with or merged into the Company or a Subsidiary or its becoming a Subsidiary, or any Lien existing on any property acquired by the Company or any Subsidiary at the time such property is so acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided that
that (i) any no such Lien shall have been created or assumed in contemplation of such consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property, (ii) each such Lien shall extend solely to the item or items of such Property (or improvement thereon) property so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) property which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed property, and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereoniii) at the time of such acquisition incurrence and after giving effect thereto, no Default or constructionEvent of Default would exist;
(i) any extensions, and
renewals or replacements of any Lien permitted by the preceding subparagraphs (e), (f), (g) or (h) of this Section 10.5, provided that (i) no additional property shall be encumbered by such Liens, (ii) the unpaid principal amount of the Indebtedness or other obligations secured thereby shall not be increased on or after the date of any extension, renewal or replacement, and (iii) at such time and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(j) Liens relating to customary rights of setoff, revocation, refund or chargeback of banks or other financial institutions under deposit agreements or similar Global Water Resources, Inc. Note Purchase Agreement agreements where the Company or its Subsidiary maintains deposits in the ordinary course of business;
(k) Liens securing the Indebtedness represented by the Notes;
(l) Liens securing Indebtedness of the Company or any Subsidiary under any Material Credit Facility; provided, that notwithstanding the foregoing, the Company shall not, and shall not permit any of its Subsidiaries to, secure pursuant to this Section 10.5(l) any Indebtedness outstanding under or pursuant to any Material Credit Facility unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required Holders in substance and in form, including, without limitation, an intercreditor agreement and opinions of counsel to the Company and/or any such Lien shall be created contemporaneously with Subsidiary, as the acquisition or construction of such Propertycase may be, from counsel that is reasonably acceptable to the Required Holders; and
(gm) in addition to other Liens securing Indebtedness of the Liens Company or any Subsidiary not otherwise permitted by the preceding clauses (a) through (fl), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall not at any time exceed 5% of Consolidated Assets (determined as of the end of the then most recently ended fiscal quarter of the Company); provided, further, that notwithstanding the foregoing, the Company shall not, and shall not permit any of its Subsidiaries to, secure pursuant to this Section 10.5(m) any Indebtedness outstanding under or pursuant to any Material Credit Facility unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be permitted by secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the applicable limitations set forth Required Holders in Section 4.2 substance and 4.3in form, including, without limitation, an intercreditor agreement and opinions of counsel to the Company and/or any such Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders.
Appears in 1 contract
Samples: Note Purchase Agreement (Global Water Resources, Inc.)
Limitation on Liens. The Company will Each of Parent and Borrower agrees that it shall not, and will not permit any of shall cause its Restricted Subsidiaries toto not, directly or indirectly indirectly, make, create, incur, assume or permit suffer to exist (upon the happening of a contingency or otherwise) any Lien on upon or with respect to any Property or asset (including, without limitation, any document or instrument in respect part of goods or accounts receivable) of the Company or any such Restricted Subsidiaryits property, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except:other than the following (“Permitted Liens”):
(a) any Lien existing on the Closing Date securing Indebtedness outstanding on such date described on Schedule 8.01(a) of this Agreement; provided that (i) such Lien shall not apply to any other property or asset (other than after-acquired property of the same type securing such Indebtedness) of the Parent, the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations of the Parent, the Borrower or any Subsidiary which it secures on the Closing Date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges that are not delinquent or remain payable without penalty, or to the extent that non-payment thereof is permitted by Section 7.07 that are being contested in good faith and by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto; and for which adequate reserves have been maintained in accordance with GAAP, and for which the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect;
(d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business securing obligations which are not yet due delinquent or remain payable without penalty or which are being contested in good faith and payable by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the payment of which is not at the time required by Section 4.13property subject thereto;
(be) any attachment Liens consisting of pledges or judgment Liendeposits required in the ordinary course of business in connection with workers’ compensation, unless the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)unemployment insurance and other social security legislation;
(cf) statutory Liens of landlords and Liens of carrierseasements, warehousemenrights-of-way, mechanicsrestrictions, materialmen defects or other exceptions to title and other similar Liens, in each case, encumbrances incurred in the ordinary course of business that, in the aggregate, are not substantial in amount, are not incurred to secure Indebtedness, and that do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of such Loan Party’s businesses;
(g) 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 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 such Loan Party, (ii) such Loan Party maintains (subject to such right of set off) dominion and control over such account(s), and (iii) such deposit account is not intended by such Loan Party to provide cash collateral to the depository institution;
(h) any usual and customary Liens arising under Oil and Gas leases for sums royalty payments not yet due and payable and reciprocal liens arising under operating agreements for joint interest xxxxxxxx not yet due and payable or that are being contested in good faith and by appropriate proceedings, which proceedings have the payment effect of which is not at preventing the time required by Section 4.13;
(d) Liens (other than any Lien imposed by ERISA) incurred forfeiture or deposits made in the ordinary course of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment sale of the deferred purchase price of Propertyproperty subject thereto, and for which adequate reserves have been maintained in accordance with GAAP;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item [Reserved];
(j) Liens on fixed or items of such Property capital assets (including office equipment, data processing equipment and motor vehicles) acquired, constructed or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by Parent, Borrower or any Subsidiary; provided that (i) such acquired or constructed Property (or improvement thereonLiens secure Indebtedness permitted by Section 8.05(b),
, (ii) such security interests and the principal amount of the Debt Indebtedness secured by any such Lien shall at no time exceed an amount equal thereby are incurred prior to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of within 180 days after such acquisition or constructionthe completion of such construction or improvement, and
(iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of Parent, Borrower or any other Subsidiaries (other than proceeds and accessions and additions to such Lien shall be created contemporaneously with the acquisition or construction of such Propertyproperty); and
(gk) Liens on insurance policies and proceeds thereof securing insurance premium financing permitted under Section 8.05(m) under customary terms and conditions, provided that no such Lien may extend to or cover any property other than the insurance being acquired with such financing, the proceeds thereof and any unearned or refunded insurance premiums related thereto; provided that (1) Liens described in addition to the Liens permitted by the preceding clauses (ac) through (fi) and in clause (k) shall remain “Permitted Liens” only for so long as no action to enforce such Lien has been commenced, (2) no intention to subordinate the first priority Lien granted in favor of the Administrative Agent and the Lenders is to be hereby implied or expressed by the permitted existence of any Permitted Lien, and (3) except in the case of clauses (b) and (j), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of the term “Permitted Lien” shall not include any Company) Lien securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3Indebtedness.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Midstates Petroleum Company, Inc.)
Limitation on Liens. The Company Borrower will not, and will not permit allow any of its Restricted Subsidiaries Subsidiary to, directly or indirectly (i) create, incur, assume or permit allow to exist (upon the happening of a contingency be created, incurred or otherwise) any Lien on assumed, or with respect to any Property or asset (including, without limitationexist, any document or instrument in respect of goods or accounts receivable) of the Company or any such Restricted Subsidiary, whether now owned or held or hereafter acquiredpledge of, or any income Lien of any kind on, any of their respective properties, assets or profits therefromcapital stock, (ii) subject any of such assets to prior payments of any other Indebtedness whether by subordination agreement, transfer of assets or otherwise, or assign (iii) own or otherwise convey acquire or agree to acquire any right property of any character subject to receive income or profitsupon any mortgage, exceptconditional sale agreement or other title retention agreement, provided, however, that the foregoing restrictions shall not prohibit the Borrower or a Subsidiary from:
(a) creating or allowing to exist any Liens for taxes, assessments or other governmental charges which are not yet due and payable or the payment of which is not at the time required by secure Indebtedness permitted under Section 4.135.10;
(b) creating or allowing to exist any attachment Liens in favor of the Bank or judgment Lien, unless otherwise permitted under the judgment it secures shall not, within 30 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 30 days after the expiration of any such stay (or such lesser period of time as applicable law allows a judgment creditor to levy on such judgment)Security Documents;
(c) statutory allowing to exist Liens for taxes, assessments, governmental charges and levies for claims described in Section 5.04 hereof to the extent that payment thereof is not then required by such Section;
(d) allowing to exist Liens in respect of landlords judgments or awards which have been in force for less than the applicable appeal period or less than sixty (60) days, whichever is sooner, so long as execution is not levied thereunder, or in respect of which the Borrower or such Subsidiary at the time shall in good faith be prosecuting an appeal, or proceedings for review are pending and Liens in respect of which a stay of execution shall have been obtained pending such appeal or review; and
(e) creating or all owing to exist deposits or pledges made in connection with, or to secure payment of, workmen's compensation, unemployment insurance or similar programs; Liens, charges or encumbrances imposed by law, such as carriers', warehousemen, 's and mechanics, materialmen ' Liens and other similar Liens, in each case, incurred Liens arising in the ordinary course of business for sums which do not, individually or in the aggregate, materially detract from the value or limit the use of any property subject thereto; landlords' Liens in respect of rent not yet due and payable in default or Liens securing the payment performance of which is not at the time required by Section 4.13;
(d) Liens bids, tenders, contracts (other than any Lien imposed by ERISA) incurred or deposits made in for the ordinary course repayment of business (i) in connection with workers' compensation, unemployment insurance and other types of social security or retirement benefits, or (ii) to secure (or to obtain letters of credit that secure) the performance of tendersborrowed money), statutory obligations, obligations and surety bonds, appeal bonds, bids, leases (other than Capitalized Leases), performance bonds, purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of Property;
(e) Liens existing on the date of the First Amendment and securing the Debt of the Company and its Restricted Subsidiaries referred to in Exhibit B to the First Amendment;
(f) any Lien created to secure all or any part of the purchase price, or to secure Debt incurred or assumed to pay all or any part of the purchase price or cost of construction, of Property (other than accounts receivable or inventory), or any improvement thereon, acquired or constructed by the Company or a Restricted Subsidiary after the date of the First Amendment, provided that
(i) any such Lien shall extend solely to the item or items of such Property (or improvement thereon) so acquired or constructed and, if required by the terms of the instrument originally creating such Lien, other Property (or improvement thereon) which is an improvement to or is acquired for specific use in connection with such acquired or constructed Property (or improvement thereon) or which is real Property being improved by such acquired or constructed Property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien shall at no time exceed an amount equal to the lesser of (A) the cost to the Company or such Restricted Subsidiary of the Property (or improvement thereon) so acquired or constructed and (B) the fair market value (as determined in good faith by the board of directors of the Company) of such Property (or improvement thereon) at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a) through (f), inclusive, of this Section 4.4, Liens on Property (other than accounts receivable or inventory of any Company) securing Priority Debt of the Company or any Restricted Subsidiary, provided that such Priority Debt shall be permitted by the applicable limitations set forth in Section 4.2 and 4.3.
Appears in 1 contract
