Negative Pledge. No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets other than an Encumbrance: (a) which is an Existing Encumbrance set out in: (i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or (ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2; (b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group; (c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents; (d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness); (e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which: (i) arises in the ordinary course of trading and/or by operation of Law; (ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis; (iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging); (iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or (v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full; (f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability; (g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if: (i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and (ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time; (h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if: (i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 5 contracts
Samples: Senior Facilities Agreement (Virgin Media Investment Holdings LTD), Senior Facilities Agreement (Virgin Media Investment Holdings LTD), Senior Facilities Agreement (Virgin Media Inc.)
Negative Pledge. (a) No Offshore Obligor shall (and the Company each Offshore Obligor shall procure ensure that no other member of the Bank Offshore Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets including, for the avoidance doubt and subject to paragraph (c) below, any Charged Property.
(b) No Offshore Obligor shall (and each Offshore Obligor shall ensure that no other member of the Offshore Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Offshore Obligor or any other than member of the Offshore Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into or permit to subsist any title retention arrangement;
(iv) enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(v) enter into or permit to subsist any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 any transaction contemplated by the Junior Investment Documents to the extent it constitutes Security or Quasi-Security (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days including any Junior Investment Security in accordance with the terms of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial IndebtednessIntercreditor Deed);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any Security or Quasi-Security created pursuant to any Finance Document;
(iii) the Security or Quasi-Security created over the shares of (A) the Borrower or (A) Joyful Wellness, in each case, to secure the Fullgoal Notes;
(iv) any Security or Quasi-Security created with the consent of the Lender;
(v) any netting or set-off arrangement entered into by the Borrower or any other member of the Bank Offshore Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;balances; or
(iiivi) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); trading provided that the title debt which is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, paid when due or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) contested in good faith by appropriate proceedings and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andproperly provisioned.
Appears in 3 contracts
Samples: Facility Agreement, Facility Agreement (Pacific Alliance Group LTD), Facility Agreement (Sun Wise (UK) Co., LTD)
Negative Pledge. No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing first Utilisation Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Relevant Finance Documents (including, for the purposes of securing including any Alternative Baseball FinancingAdditional Facilities) and any Bridge Finance Senior Secured Notes Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (kj) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over any property or other assets to satisfy any pension plan contribution liabilities provided that the aggregate value of any such property or other assets, when taken together with the aggregate amount utilised under the basket in paragraph (e) of Clause 25.6 (Disposals), shall not exceed £100 million at any time;
(i) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
(ii) to the extent not repaid by close of business on the date upon which such company became a member of the Bank Group, the Financial Indebtedness secured by such Encumbrance at all times falls within paragraph (g) or (j) of Clause 25.4 (Financial Indebtedness);
(j) constituted by a rent deposit deed entered into on arm’s length commercial terms and in the ordinary course of business securing the obligations of a member of the Bank Group in relation to property leased to a member of the Bank Group;
(k) constituted by an arrangement referred to in paragraph (d) of the definition of Financial Indebtedness;
(l) which is granted over the shares of, Indebtedness owed by or other interests held in, or over the assets (including, without limitation, present or future revenues), attributable to a Project Company, a Bank Group Excluded Subsidiary or a Permitted Joint Venture;
(m) over cash deposited as security for the obligations of a member of the Bank Group in respect of a performance bond, guarantee, standby letter of credit or similar facility entered into in the ordinary course of business of the Bank Group;
(n) which is created by any member of the Bank Group in substitution for any Existing Encumbrance referred to in paragraph (a)(ii) above, provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(o) securing any Financial Indebtedness on a pari passu or junior ranking basis with respect to any part of the Facilities, provided that:
(i) the ratio of Consolidated Senior Net Debt to Consolidated Operating Cashflow (giving pro forma effect to any such Financial Indebtedness and the use of proceeds thereof) would be equal to, or less than, 3.00:1.00 (rounded to the second decimal number), provided that this limitation shall not apply to any Financial Indebtedness the proceeds of which are used to refinance (A) the Facilities (including any Additional Facility), (B) any Senior Secured Notes or (C) any other Financial Indebtedness which is secured by assets that are subject to the Security;
(ii) the proceeds of any such Financial Indebtedness shall not be used in payment of any dividends or distributions to the Ultimate Parent’s shareholders or any repurchase of capital stock of the Ultimate Parent; and
(iii) (A) any such Financial Indebtedness ranking pari passu with the Facilities outstanding on the Original Execution Date or any Financial Indebtedness that would have ranked pari passu with the Facilities outstanding on the Original Execution Date is subject to the Group Intercreditor Agreement and the HYD Intercreditor Agreement and (B) any such Financial Indebtedness which is secured on a junior ranking basis over assets subject to the Security, such junior ranking security shall be granted on terms where the rights of the relevant mortgagee, chargee or other beneficiary of such security in respect of any payment will be subordinated to the rights of the Relevant Finance Parties under an intercreditor agreement (providing for contractual subordination on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt) and, in each case, the Relevant Finance Parties agree to execute such intercreditor agreement as soon as practicable following request from the Company; or
(p) securing Financial Indebtedness the principal amount of which (when aggregated with the principal amount of any other Financial Indebtedness which has the benefit of an Encumbrance other than as permitted pursuant to paragraphs (a) to (o) above) does not exceed £330 million (or its equivalent in other currencies), including Financial Indebtedness:
(i) which may be secured on assets not subject to the Security; or
(ii) which may be secured on a junior ranking basis over assets subject to the Security provided that such junior ranking security shall be granted on terms where the rights of the relevant mortgagee, chargee or other beneficiary of such security in respect of any payment will be subordinated to the rights of the Relevant Finance Parties under an intercreditor arrangement (providing for contractual subordination on terms comparable to the Loan Market Association’s form of intercreditor agreement at such time for mezzanine debt) and provided further that each of the Relevant Finance Parties agrees to execute such intercreditor agreement as soon as practicable following request from the Company.
Appears in 3 contracts
Samples: Senior Facilities Agreement (VMWH LTD), Senior Facilities Agreement (Virgin Media Inc.), Senior Facilities Agreement (Virgin Media Inc.)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security comprising a netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any Security over goods and documents of members title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Bank Group operated on a net balance basisGroup;
(iii) arises any Security existing and disclosed in respect writing to the Facility Agent prior to the date of netting this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)its maturity extended;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of that acquisition;
(B) the acquisition of such asset by a member of amount thereby secured has not been increased in contemplation of, or since the Bank Groupdate of, that acquisition; and
(iiC) unless the Financial Indebtedness secured thereby Security is Financial Indebtedness of, in favour of a government or is assumed by, the relevant acquiring member utility supplier and was required to be given as a condition of the Bank Groupperson who created the Security being permitted to carry on business or being provided with utility supplies, it is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) six Months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six Months of that company becoming a member of the Group;
(vi) any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
(vii) any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
(viii) any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 22.6(b)(vi)), does not exceed 5 per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
Appears in 3 contracts
Samples: Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC), Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC), Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises any Security Interest listed in Schedule 5 (Existing Security) except to the ordinary course of trading and/or extent the principal amount secured by operation of Lawthat Security Interest exceeds the amount stated in that Schedule;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law (or by an agreement evidencing a lien that would otherwise arise by operation of law) and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)business;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard payment or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; orclose out netting or set-off arrangement pursuant to any hedging transaction permitted under Clause 22.7(b)(iv) (Financial Indebtedness);
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:
(i) such Encumbrance or since, the acquisition and the Security Interest was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and;
(iivi) any Security Interest securing indebtedness the Financial Indebtedness secured thereby is Financial Indebtedness principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of a Security Interest not allowed under the preceding sub-paragraphs) does not exceed the greater of: (A) £100,000,000 or its equivalent, or is assumed by, the relevant acquiring member and (B) an amount equal to 10% of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) net assets of Clause 25.4 the Company as shown in the audited consolidated financial statements of the Company most recently delivered to the Facility Agent pursuant to Subclause 20.1 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased statements), at any time;
(hvii) any pledge of goods, the related documents of title and/or other related documents arising or created in the ordinary course of its business as security to a bank or financial institution for financial obligations directly relating to the goods or documents on or over which that pledge exists;
(viii) any Security Interest arising out of title retention provisions in a supplier’s standard conditions of supply of goods acquired by it in the ordinary course of its business;
(ix) any Security Interest arising pursuant to an order of attachment, distress, garnishee or affecting any asset injunction restraining disposal of any company which becomes a assets or similar legal process arising in connection with court proceedings being contested by the relevant member of the Bank Group after in good faith and which in any event is discharged within 60 days;
(x) any Security Interest over the Original Execution Date, shares or capital in the debtor of Non-Recourse Indebtedness;
(xi) any Security Interest (Replacement Security Interest) created to replace or renew or in substitution for any Security Interest otherwise permitted (Prior Security Interest) where such Encumbrance the Replacement Security Interest is created prior to the date on which such company becomes a member granted in respect of the Bank Group, if:same asset as the Prior Security Interest and does not secure an amount in excess of the amount secured by the Prior Security Interest;
(ixii) such Encumbrance was not any Security Interest over contracts entered into in the ordinary course of business for the supply of goods and/or services and over assets employed in the performance of those contracts, to secure counter-indemnity obligations in respect of any bond, guarantee, letter of credit or other instrument having a similar effect, in each case, issued in respect of obligations under or in connection with the performance of those contracts;
(xiii) any Security Interest over or any arrangement described in paragraph (b) above in respect of Unrestricted Margin Stock; or
(xiv) any other Security Interest created in contemplation or outstanding with the prior consent of the acquisition of such company; andMajority Lenders.
Appears in 3 contracts
Samples: Credit Facilities Agreement (Amec PLC), Credit Facilities Agreement (Amec PLC), Credit Facilities (Amec PLC)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security comprising a netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any Security over goods and documents of members title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Bank Group operated on a net balance basisGroup;
(iii) arises any Security existing and disclosed in respect writing to the Facility Agent prior to the date of netting this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)its maturity extended;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of that acquisition;
(B) the acquisition of such asset by a member of amount thereby secured has not been increased in contemplation of, or since the Bank Groupdate of, that acquisition; and
(iiC) unless the Financial Indebtedness secured thereby Security is Financial Indebtedness of, in favour of a government or is assumed by, the relevant acquiring member utility supplier and was required to be given as a condition of the Bank Groupperson who created the Security being permitted to carry on business or being provided with utility supplies, it is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) six months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of that company becoming a member of the Group;
(vi) any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
(vii) any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
(viii) any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 23.6(b)(vi)), does not exceed 5 per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
Appears in 2 contracts
Samples: Debt Bridge Facility Agreement (Xstrata PLC), Debt Bridge Facility Agreement (Xstrata PLC)
Negative Pledge. (A) No Obligor Chargor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbranceassets.
(B) No Chargor shall:
(a1) which is an Existing Encumbrance set out in:sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Chargor or any other member of the Group;
(i2) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its receivables on recourse terms;
(Existing Encumbrances3) provided that such Encumbrance is released within 10 Business Days enter into any arrangement under which money or the benefit of the Merger Closing Datea bank or other account may be applied, set-off or made subject to a combination of accounts; or
(ii4) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset(such arrangement or transaction being “Quasi-Security”).
(cC) which is created pursuant Clauses 15.1(A) and 15.1(B) do not apply to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements Security or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of setQuasi-off, netting arrangement, title transfer Security listed or title retention arrangements whichdescribed below:
(i1) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii2) arises in respect any lien arising by operation of netting law or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment including liens in respect of which the purchase price has not been paid in fullassets imposed by law, title retention, netting, set-off, other encumbrances arising as part of hedging, operation of bank accounts (including under a bank’s general terms and conditions) and trading relationships or arising as part of letter of credit transactions, and rental deposits);
(f3) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Deed if:
(ia) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(b) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iic) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 6 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(h4) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Deed, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(ia) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(b) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(c) the Security is removed or discharged within 6 months of that company becoming a member of the Group;
(5) any Security or Quasi-Security created or evidenced by any Finance Document;
(6) any Security or Quasi-Security arising under the Existing Security Documents;
(7) any Security or Quasi-Security arising pursuant to court proceedings and assessments by authorities (including tax and environmental) being contested in good faith with appropriate reserves;
(8) any Security or Quasi-Security granted by a member of the Group in favour of a Chargor;
(9) any Security or Quasi-Security arising under hire purchase agreements, conditional sale arrangements in respect of goods supplied to a Chargor in the ordinary course of day-to-day business and under suppliers’ standard or usual terms or arrangements having similar effect;
(10) any Security or Quasi-Security in favour of tax or customs authorities in connection with the importation of goods;
(11) any Security or Quasi-Security over goods, inventory or documents of title where the shipment or storage price is financed by a documentary credit;
(12) cash cover relating to a letter of credit or by way of replacement for a letter of credit;
(13) any Security or Quasi-Security in relation to which the Lender has provided its consent; and
(14) any additional Security which exists in respect of any asset other than permitted under paragraphs (1) to (13) above securing indebtedness the outstanding principal amount of which in aggregate does not at any time exceed USD 1,000,000 (or its equivalent).
Appears in 2 contracts
Samples: Supplemental Security Agreement (Freeline Therapeutics Holdings PLC), Security Agreement (Freeline Therapeutics Holdings PLC)
Negative Pledge. No Obligor shall (and the Company shall procure that no member Each of the Bank Group shall), without the prior written consent of an Instructing Group, Obligors undertakes not to create or permit to subsist subsist, and (in case of the Company only) to procure that no Material Subsidiary shall create or permit to subsist, any Encumbrance Security over all or any of its present or future revenues or assets as security for Financial Indebtedness of any person other than an Encumbrancethan:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A any Security arising in the ordinary course of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days business or on the basis of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2customary general business conditions;
(b) which arises any Security arising solely by operation of Law law (or by a contract having a similar effect an agreement evidencing the same);
(c) any Security created or under an escrow arrangement required by a trading counterparty of any member permitted to subsist with the prior written consent of the Bank Group and Majority Lenders;
(d) any Security arising in each case arising connection with any netting or set off arrangement entered into in the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts or in connection with customary framework/master agreements relating to derivatives transactions made in the ordinary course of members of the Bank Group operated on a net balance basisbusiness;
(iiie) arises any Security existing over newly acquired assets at the time of their acquisition not created in respect contemplation of netting such acquisition or set off arrangements contained in any Hedging Agreement or other contract permitted under over assets of an entity which becomes subject to the provisions of this Clause 25.12 21.1 (Limitations on Hedging)Negative Pledge) after the Signing Date;
(ivf) is entered into by any member Security existing or created in order to comply with section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) or pursuant to section 7e of the German Social Security Code IV (Sozialgesetzbuch IV) or granted to a pension fund (or the respective pension trustee) or contractual trust arrangement initiated by the Group to secure contribution obligations towards such pension fund or contractual trust arrangement;
(g) any Security provided under customary export finance or other subsidised loans or to a public financial institution (including the European Investment Bank Group on terms which are generally no worse than and the counterpartyEuropean Bank for Reconstruction and Development) in accordance with such institution’s standard or usual terms and published lending policy;
(h) any Security arising in connection with the issue of asset-backed securities entered into in the ordinary course of business business;
(i) any Security arising in connection with any arrangement made within the ordinary course of treasury activities of the relevant Group by which a member of the Bank Group disposes of any marketable securities on terms whereby they are or may be re-acquired by that member of the Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(fj) which arises in respect of relation to a Project Company, Security on the assets and/or the business constituted by that project and/or the shares in any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member Project Company and/or over loans made to it by members of the Bank Group shall have or will establish such reserves as may be required and/or claims under applicable generally accepted accounting principles in respect insurance contracts insuring the assets of such judgment, award, order or tax liabilitythe business constituted by that project;
(gk) over or affecting any asset acquired in relation to a project finance transaction (entered into by a member of the Bank Group after the Original Execution Date and subject other than Linde) in relation to which such asset the borrower is acquirednot a Project Company any Security over project assets (including ancillary rights and any proceeds therefrom), if:
(i) such Encumbrance was not created in contemplation the acquisition, construction or development of which is financed with debt incurred for the acquisition purpose of such asset project finance transaction where the only recourse is to such assets of such borrower (it being understood that a completion guarantee granted by a another member of the Bank GroupGroup does not constitute recourse for the purpose of the preceding sentence);
(l) any Security existing or created over cash accounts held with banks in connection with the local funding needs of foreign members of the Group (back-to-back);
(m) any Security over claims under loans made by Linde Finance B.V. to any other member of the Group as security for the repayment of notes, the proceeds of the issuance of which were used by Linde Finance B.V. to make the respective loans;
(n) any Security over cash deposits granted in favour of the trustee for the holder of Loan Notes;
(o) any Security over cash deposits or cash equivalents using funds drawn hereunder and used in connection with the defeasance of Existing Financial Indebtedness provided that the aggregate amount of the Financial Indebtedness secured hereunder does not exceed EUR 500,000,000 (or its equivalent);
(p) in relation to Financial Indebtedness incurred locally for local financing needs if it is customary to provide Security in respect of such Financial Indebtedness provided that the aggregate amount of Financial Indebtedness secured hereunder does not exceed EUR 150,000,000 (or its equivalent);
(q) any other Security, provided that the aggregate amount of all claims which are at any time outstanding and secured by Security created or existing in reliance on this paragraph (q) (converted into EUR in case a claim is not denominated in EUR) does not exceed EUR 350,000,000 (or its equivalent); and
(iir) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member any Security created in favour of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and Finance Parties under the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinance Documents.
Appears in 2 contracts
Samples: Term Loan Facilities Agreement, Term Loan Facilities Agreement (Linde AG)
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that none of its Subsidi-
(b) No Obligor shall (and each Obligors shall ensure that no of its Subsidiar- ies will):
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Bank Group shall)Group;
(ii) sell, without the prior written consent transfer or otherwise dispose of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets receivables on recourse terms other than to the German Borrower and where such transaction is not otherwise prohibited by this Agreement;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) (including any Security which has been Refinanced provided that the assets subject to such Encumbrance is released within 10 Business Days of Security have not materially changed in any way) except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthat Schedule;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and Security entered into in the ordinary course of business under customary general business conditions;
(iv) any lien arising by operation of law or regulatory requirement and in the relevant member ordinary course of the Bank Group; orbusiness and not as a result of a default howsoever described;
(v) which is a retention any Security arising by operation of title arrangement with respect to customer premises equipment law in favour of a supplier (any gov- ernment, state or its Affiliate); provided that the title is only retained to individual items of customer premises equipment local authority in respect of Taxes which the purchase price has are either (a) not yet due and unpaid or (b) being contested in good faith by appropriate proceedings and for which adequate reserves have been paid in fullmade;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition acquisition of such that asset by a member of the Bank Group; and
(ii2) the Financial Indebtedness principal amount secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed by, since the relevant acquiring acquisition of that asset by a member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(hvii) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such company that company becomes a member of the Bank Group, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition acquisition of such that company; and
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company;
(viii) the Transaction Security;
(ix) any Security which has been approved in writing by the Majority Lenders;
(x) any Security incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any Security securing letters of credit issued in the ordinary course of business in accordance with past practice;
(xi) any Security over assets of the Norwegian Borrower 2 acquired with Financial Indebtedness permitted under paragraph (k) of the definition of Permitted Financial Indebtedness provided that such Security is removed upon the full discharge of the relevant Permitted Financial Indebtedness incurred to finance the payment of the purchase price for such asset; or
(xii) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (ix) above) does not exceed EUR 5,000,000 its equivalent in another currency or currencies).
Appears in 2 contracts
Samples: Facility Agreement (Kronos International Inc), Facility Agreement (Kronos International Inc)
Negative Pledge. No Obligor shall (and a) Subject to paragraph (c) below, the Company shall procure not (and shall ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) Subject to paragraph (c) below, the Company shall not (and shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement intended to have and having substantially the same commercial effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect set-off or under an escrow lien arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leasesbut not limited to, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednesscash pooling arrangements);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basistrading;
(iii) arises any lien created by a Subsidiary in respect favour of netting or set off a bank in the ordinary course of its banking arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)pursuant to standard banking terms of business;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i) such Encumbrance I. the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
II. the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(ii) III. the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three Months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(i) such Encumbrance I. the Security was not created in contemplation of the acquisition of such that company;
II. the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
III. the Security is removed or discharged within three Months of that company becoming a member of the Group;
(vi) any Security created with the prior written consent of the Lender and the Guarantor;
(vii) any Security over goods and documents of title to goods arising in the ordinary course of letter of credit transactions entered into in the ordinary course of trading; or
(viii) any Security securing indebtedness and/or any sale and leaseback involving an asset or assets the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security and/or any sale and leaseback involving an asset or assets other than any permitted under paragraphs (i) to (vii) above) does not exceed £25,000,000 (or its equivalent in another currency or currencies) outstanding at any time.
Appears in 2 contracts
Samples: Facility Agreement (Best Buy Co Inc), Facility Agreement (Best Buy Co Inc)
Negative Pledge. No Obligor shall (will, and the Company shall each Obligor will procure that no member none of the Bank Group shall)its Subsidiaries will, without the prior written consent of an Instructing Group, create or agree to create or permit to subsist any Encumbrance Security Interest on or over all the whole or any of part its undertaking or assets (present or future revenues or assets other than an Encumbrancefuture) except for:
(a) which is an Existing Encumbrance set out in:
liens arising solely by operation of law and in the ordinary course of business and not as a result of any default or omission on the part of any member of the Group, save to the extent (i) Part 1A such default or omission is capable of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released remedy and has been remedied within 10 Business Days 30 days of the Merger Closing Date; or
date on which such default occurred or (ii) Part 1B such default or omission is being contested by the relevant member of Schedule 10 the Group in good faith by appropriate proceedings or (Existing Encumbrancesiii) provided that the principal amount secured thereby may not be increased unless any Encumbrance such default is in respect of such increased amount would be permitted under another paragraph obligations to pay indebtedness which, when aggregated with all Financial Indebtedness referred to in Clause 23.5 (Cross Default) (irrespective of this Clause 25.2the basket referred to therein), does not in aggregate at any one time exceed EUR15,000,000 (or its equivalent in other currencies);
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off existing in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by activities between any member of the Bank Group in the normal course of and its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisrespective suppliers or customers;
(iiic) arises in respect rights of set-off or netting arising by operation of law or set off arrangements contained in any Hedging Agreement or other by contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by virtue of the provision to any member of the Bank Group on terms which are generally no worse than of clearing bank or similar facilities or overdraft facilities permitted under this Agreement or Security Interests arising in relation to any account with any bank under the counterparty’s standard or usual commercial terms and entered into conditions of such bank which provides clearing bank or similar facilities or overdraft facilities permitted under this Agreement;
(d) any retention of title to goods supplied to any member of the Group where such retention is required by the supplier in the ordinary course of business its trading activities and on customary terms and the goods in question are supplied on credit;
(e) Security Interests (except floating charges) arising under finance leases, hire purchase, conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 17.9 (Leasing Arrangements), only to the extent such Security Interests are granted by the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (Group over assets comprised within or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullconstituted by such arrangements;
(f) which arises Security Interests arising under the Security Documents or in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of Mezzanine Facility (subject to the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilityIntercreditor Deed);
(g) any Security Interest over or affecting any asset acquired by a any member of the Bank Group on or after the Original Execution Date date of this Agreement and subject to which such asset is acquired, ifprovided that:
(i) such Encumbrance Security Interest was not created in contemplation of the acquisition of such asset by a such member of the Bank Group; and;
(ii) the Financial Indebtedness amount thereby secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed bysince the date of, the relevant acquiring member acquisition of such asset by the Bank Group, Borrower; and
(iii) such Security Interest is Financial Indebtedness which at all times falls released within paragraph (g) or (k) 3 months of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timesuch acquisition;
(h) any Security Interest over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance Security Interest is created prior to the date on which such company becomes a member of the Bank Group, ifprovided that:
(i) such Encumbrance Security Interest was not created in contemplation of the acquisition of such company; and;
Appears in 2 contracts
Samples: Loan Agreement (Elster Group SE), Loan Agreement (Elster Group SE)
Negative Pledge. No (a) Each Obligor shall (not, and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing GroupCompany will, create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:in respect of Borrowings.
(b) Paragraph (a) which is an Existing Encumbrance set out indoes not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any Security created or subsisting with the prior written consent of the Merger Closing Date; orMajority Lenders;
(ii) Part 1B any lien or rights of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises set-off arising by operation of Law law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawbusiness;
(iiiii) any Security over any assets of a Group Company existing at the time that company becomes a Group Company provided that: Back to Contents
(A) the company is not a Group Company at the date of this Agreement;
(B) the Security is not created in contemplation of that company becoming a Group Company;
(C) the Security remains confined to the asset(s) it covered at the date the company became a Group Company; and
(D) to the extent that the amount secured has been increased, such Security shall not fall within this sub-paragraph (iii);
(iv) any Security arising pursuant to a Cash-backed Borrowing;
(v) any Security referred to in paragraph (a)(ii) of the definition of "Project Borrowing" in Clause 1.1 (Definitions) or any Security over the assets of a Project Borrower created by such Project Borrower, provided that this paragraph (v) shall not permit any Security to be created by or subsist over all or any of the assets of the Company;
(vi) any netting or set-off arrangement entered into by any member of the Bank Group Company in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiivii) arises in respect of any netting or set set-off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is arrangement entered into by any member Group Company in connection with any Borrowing specified in paragraph (e) of the Bank Group on terms which are generally no worse than definition thereof, in connection with the counterparty’s standard or usual terms and entered into in the ordinary course netting of business of the relevant member of the Bank Group; or
(v) which is transactions across a retention of title arrangement with respect to customer premises equipment in favour of a supplier single master agreement (or its Affiliate); provided that any equivalent) and the title is only retained to individual items close-out or termination of customer premises equipment any transaction thereunder, but excluding for the avoidance of doubt the granting of any collateral or credit or cash support in respect of which the purchase price has not been paid in fullrelation thereto;
(fviii) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Company after the Original Execution Date and subject to which such asset is acquired, ifdate of this Agreement provided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a Group Company; and
(B) to the extent that the principal amount secured since the acquisition of that asset by a Group Company has been increased, such Security shall not fall within this sub-paragraph (vii);
(ix) any title transfer, conditional sale or retention of title arrangement entered into by any Group Company in the ordinary course of business;
(x) any Security created by SNT Group NV or any of its Subsidiaries;
(xi) any Security (a "substitute Security") which replaces any other Security permitted under sub-paragraphs (i) to (viii) (inclusive) above (an "existing Security") to the extent that the Security secures an amount not exceeding the principal amount secured by such existing Security at the time it is replaced provided that (1) the existing Security to be replaced is released and all amounts secured thereby are paid or otherwise discharged in full at or Back to Contents prior to the time of such substitute Security being created or arising and (2) such substitute Security does not extend to cover assets not previously subject to that existing Security; or
(xii) any other Security created or outstanding, but only if the aggregate principal amount of Borrowings secured by all Security created or outstanding under this exception on or over any assets of any member of the Bank Group, when taken together with the aggregate principal amount of unsecured Borrowings pursuant to Clause 21.7(l) (Subsidiary Borrowings) does not at any time exceed euro 2,600,000,000.
(c) The Company shall supply to the Facility Agent, within 5 Business Days of a request by the Facility Agent, a certificate signed by an Executive Officer certifying:
(i) the amount of the aggregate Borrowings secured by all Security falling within Paragraph (b)(xii) above; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member amount of the Bank Group, is Financial Indebtedness which at all times falls aggregate Borrowings falling within paragraph Paragraph (g) or (kl) of Clause 25.4 21.7 (Financial Indebtedness) and Subsidiary Borrowings), as at the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member date of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFacility Agent’s request.
Appears in 2 contracts
Samples: Syndicated Revolving Credit Agreement (Koninklijke KPN N V), Syndicated Revolving Credit Agreement (Koninklijke KPN N V)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises any Security Interest listed in Schedule 6 (Existing Security and Financial Indebtedness) and any renewal or replacement of any such Security Interest, except to the extent the principal amount secured by that Security Interest exceeds the amount stated in that Schedule;
(ii) any lien arising by operation of law and in the ordinary course of trading and/or by operation of Law(including pursuant to a supplier’s standard or usual terms);
(iiiii) any Security Interest arising under any retention of title, conditional sale arrangements or arrangements having similar in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Group;
(iv) any Security Interest on an asset, or an asset of any person, acquired by a member of the Group after the date of this Agreement but only for the period of 12 months from the date of acquisition and to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(v) any Security Interest arising under clause 24 or clause 25 of the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) or any similar term applied by a financial institution pursuant to its general terms and conditions;
(vi) any Security Interest created by a member of the Group in favour of and for the exclusive benefit of an Obligor, provided that the benefit of that Security Interest is not assigned or transferred by the Obligor in favour of which such Security Interest is created to any person;
(vii) any Security Interest provided in substitution for any Security Interest which is permitted under paragraph (i) above, over the same assets;
(viii) any cash pooling, netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises and any Security Interest created over credit balances in respect of netting or set off arrangements contained in any Hedging Agreement the Group’s bank accounts or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into cash equivalents in the ordinary course of business the Group’s banking arrangements for the purposes of the relevant such cash pooling, netting or set-off arrangement and any Security Interest created over rights of recourse and subrogation of any member of the Bank Group in connection with such member’s joint and several liability in the ordinary course of the Group’s banking arrangements; orand
(vix) which is a retention of title any payment or close out netting or set-off arrangement with respect pursuant to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired hedging transaction entered into by a member of the Bank Group after for the Original Execution Date and subject to which such asset is acquired, ifpurpose of:
(iA) such Encumbrance was not created in contemplation of the acquisition of such asset by a hedging any risk to which any member of the Bank GroupGroup is exposed in its ordinary course of trading; or
(B) its interest rate or currency management operations which are carried out in the ordinary course of business, in each case, for non-speculative purposes only; and
(iix) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and any Security Interest securing indebtedness the amount of Financial Indebtedness so secured is which (when aggregated with the amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not at any time;
(h) over or affecting any asset of any company which becomes a member time exceed an amount equal to 15 per cent. of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andTotal Consolidated Assets.
Appears in 2 contracts
Samples: Revolving Credit Facility (Sara Lee Corp), Revolving Credit Facility (D.E Master Blenders 1753 B.V.)
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and each Obligors shall ensure that no of its Subsidiaries will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms other than to the German Borrower and where such transaction is not otherwise prohibited by this Agreement;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) (including any Security which has been Refinanced provided that the assets subject to such Encumbrance is released within 10 Business Days of Security have not materially changed in any way) except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthat Schedule;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and Security entered into in the ordinary course of business under customary general business conditions;
(iv) any lien arising by operation of law or regulatory requirement and in the relevant member ordinary course of the Bank Group; orbusiness and not as a result of a default howsoever described;
(v) which is a retention any Security arising by operation of title arrangement with respect to customer premises equipment law in favour of a supplier (any government, state or its Affiliate); provided that the title is only retained to individual items of customer premises equipment local authority in respect of Taxes which the purchase price has are either (a) not yet due and unpaid or (b) being contested in good faith by appropriate proceedings and for which adequate reserves have been paid in fullmade;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and
(ii2) the Financial Indebtedness principal amount secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed by, since the relevant acquiring acquisition of that asset by a member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(hvii) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company; and
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company;
(viii) the Transaction Security;
(ix) any Security which has been approved in writing by the Majority Lenders;
(x) any Security incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any Security securing letters of credit issued in the ordinary course of business in accordance with past practice;
(xi) any Security over assets of the Norwegian Borrower 2 acquired with Financial Indebtedness permitted under paragraph (k) of the definition of Permitted Financial Indebtedness provided that such Security is removed upon the full discharge of the relevant Permitted Financial Indebtedness incurred to finance the payment of the purchase price for such asset; or
(xii) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (ix) above) does not exceed EUR 5,000,000 its equivalent in another currency or currencies).
Appears in 2 contracts
Samples: Facility Agreement (Nl Industries Inc), Second Amendment Agreement (Kronos International Inc)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms (other than pursuant to securitisation programs of the Company's Group existing on the date hereof and of Target Group existing on the date the Company notifies the Agent that it has the effective control of Target (which date shall not be later than 3 Months following the date on which Target becomes a Subsidiary of the Company) and provided that the cash proceeds thereof is applied toward the mandatory prepayment of the Facilities where required in accordance with Clause 18.10 (Mandatory prepayment and cancellation from Net Cash Proceeds);
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of any Security disclosed in the Original Financial Statements or listed in Schedule 10 9 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthat Schedule;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for or cash management (including hedging policies made in accordance with sound commercial practices on the purpose of netting debit and credit balances on bank accounts of members basis of the Bank existing Group operated on a net balance basispolicies) ;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 9 Months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of acquisition of such asset if not otherwise permitted under this Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time21.3;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within 9 Months of that company becoming a member of the Group if not otherwise permitted under this Clause 21.3;
(vi) any Security created in favour of a claimant or defendant in any action of the court or tribunal before whom such action is brought as security for costs or expenses where any member of the Group is actively prosecuting or defending such action by appropriate proceedings in the bona fide interests of the Group;
(vii) any Security created pursuant to any order of attachment, distraint, garnishee order, arrestment, adjudication or injunction or interdict restraining disposal of assets or similar legal process arising in connection with court proceedings, provided the same are not, in the opinion of the Majority Lenders, adverse to their interests;
(viii) any Security for taxes or assessments that are being actively contested in good faith by appropriate proceedings and for which adequate provisions are being maintained to the extent required by applicable principles;
(ix) any Security (a SUBSTITUTE SECURITY) which replaces any other Security permitted pursuant to this Clause and which secures an amount not exceeding the principal amount secured by such permitted Security at the time it is replaced together with any interest accruing on such amounts from the date such Substitute Security is created or arises any fees or expenses incurred in relation thereto provided that the existing Security to be replaced is released and all amounts secured thereby paid or otherwise discharged in full at or prior to the time of such Substitute Security being created or arising;
(x) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (vii) above) does not exceed EUR 100,000,000 (or its equivalent in another currency or currencies) until the final Original Offer Settlement Date and EUR 250,000,000 (or its equivalent in another currency or currencies) thereafter.
Appears in 2 contracts
Samples: Facility Agreement (Sanofi Synthelabo Sa), Facility Agreement (Sanofi Synthelabo Sa)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets. Table of Contents
(b) Paragraph (a) which is an Existing Encumbrance set out indoes not apply to:
(i) Part 1A any Security Interest existing (or contemplated by the terms (as at the date of Schedule 10 this Agreement) of any financing arrangement referred to in Clause 20.7(b)(ii) (Existing EncumbrancesFinancial Indebtedness)) provided that such Encumbrance is released within 10 Business Days over any asset of a member of the Merger Closing Date; orGroup or of Mittal Steel USA or any of its Subsidiaries as at the date of this Agreement, but only to the extent that:
(iiA) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may by any such Security Interest is not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2increased;
(bB) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty the maturity of any member of the Bank Group and Financial Indebtedness secured by any such Security Interest is not extended; and
(C) any Financial Indebtedness secured by any such Security Interest is not refinanced, in each case arising or entered into after the ordinary course date of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthis Agreement;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any Security Interest arising out of retention of title provisions in respect a supplier’s standard conditions of netting or set off arrangements contained supply of goods where the goods in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations question are supplied on Hedging)credit and acquired in the ordinary course of business;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivi) such Encumbrance was not any Security Interest on a rental deposit given on leasehold premises in the ordinary course of trading;
(vii) any Security Interest entered into pursuant to a Finance Document;
(viii) any Security Interest securing Project Finance Indebtedness, but only to the extent that the Security Interest is created in contemplation on an asset of the acquisition of project being financed by the relevant Project Finance Indebtedness (and/or the shares in, and/or shareholder loans to, the company conducting such asset by a project where such company has no assets other than those relating to such project);
(ix) any hire purchase, lease or conditional sale agreement other than one which would, under the applicable generally accepted accounting principles for such member of the Group, be treated as a finance or capital lease;
(x) any Security Interest arising under clause 18 of the general terms and conditions (Algemene Voorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions; Table of Contents
(xi) any Security Interest or right of set-off which may be imposed by an account bank under the terms of its standard account documentation;
(xii) any Security Interest on an asset held in Clearstream Banking, société anonyme or Euroclear Bank S.A./N.V. as operator of the Euroclear System, or any other securities depository or any clearing house pursuant to its standard terms and procedures applicable in the ordinary course of trading;
(xiii) any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as pre-judgment security for costs or expenses where any member of the Group is prosecuting or defending such action in the bona fide interest of the Group;
(xiv) any Security Interest created pursuant to any order of attachment, distraint, garnishee order, arrestment, adjudication or injunction or interdict restraining disposal of assets or similar legal process arising in connection with pre-judgment court proceedings where any member of the Group is prosecuting or defending such action in the bona fide interest of the Group;
(xv) any Security Interest on any Margin Stock (as defined in Clause 20.14(a) (ERISA) that exceeds 25 per cent. of the value of the total assets subject to paragraph (a) above at such time; and
(iixvi) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and any Security Interest securing indebtedness the amount of Financial Indebtedness so secured is which (when aggregated with the amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not exceed 10 per cent. of the book value of the consolidated assets of the Group or its equivalent at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 2 contracts
Samples: Facilities Agreement (Mittal Steel Co N.V.), Facilities Agreement (Mittal Steel Co N.V.)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security Interest over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of any Security Interest created under a document listed in Schedule 10 6 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security Interests exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthat Schedule;
(ii) is entered into by any member of Security Interest created under the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisSecurity Documents;
(iii) arises any Security Interest created under the Debt Securities Documents provided that equivalent Security is or has been granted to the Finance Parties and such Security ranks at least pari passu with the Security granted for the benefit of the creditors secured by way of a Security Interest created in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 reliance on this subparagraph (Limitations on Hedgingiii);
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is any Security Interest arising under customary general business conditions of any bank with whom a retention member of title arrangement with respect to customer premises equipment the Group maintains a banking relationship in favour the ordinary course of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullbusiness;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security Interest over or affecting any asset acquired (such Security existing at the time of acquisition of the relevant asset) by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security Interest was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security Interest is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within six months of the Bank Groupdate of acquisition of such asset, is Financial Indebtedness which at unless the value of the Security does not exceed €10,000,000 per each single acquisition or a total of €50,000,000 for all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timeacquisitions in a financial year;
(hvii) any Security Interest over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security Interest is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security Interest was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security Interest is removed or discharged within six months of that company becoming a member of the Group, unless the value of the Security does not exceed €10,000,000 per each single acquisition or a total of €50,000,000 for all acquisitions in a financial year;
(viii) any Security Interest arising in connection with a retention of title arrangement entered into in the ordinary course of business;
(ix) any Security Interest securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security Interest other than any permitted under paragraphs (i) to (viii) above) does not exceed an aggregate maximum amount, at any time outstanding, prior to the end of the Clean-Up Period €75,000,000 and thereafter €100,000,000 (or its equivalent in another currency or currencies).
Appears in 2 contracts
Samples: Credit Facility Agreement (Merck Kgaa /Fi), Credit Facility Agreement (E. Merck oHG)
Negative Pledge. No (a) Except as provided below, no Obligor shall (may, and the Company shall procure that no member of the Bank Material Group shall), without the prior written consent of an Instructing GroupMember will, create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo Obligor may, and the Company shall procure that no Material Group Member will:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its present or future assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateMaterial Group or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset (present or future).
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises in any Security Interest constituted by the ordinary course of trading and/or by operation of LawSecurity Documents;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is entered into any Security Interest given, by any an Obligor or member of the Bank Group on terms which are generally no worse than listed in Part 1 (Existing Security Interest) of Schedule 5 (Existing Security Interest, Loans, Guarantees, and Letters of Credit), provided that the counterparty’s standard or usual terms and entered into principal amount secured is not increased from the amount stated in the ordinary course of business of the relevant member of the Bank Group; orthat Schedule;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject date of this Agreement but only to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivi) such Encumbrance was any Security Interest on an asset, or an asset of any person, acquired or to be acquired by the Borrower to secure indebtedness raised for the purpose of financing or refinancing the acquisition or development of that asset but only to the extent that the principal amount secured by that Security Interest does not created in contemplation exceed the cost of the acquisition or development;
(vii) any Security Interest over cash collateral required to be provided under this Agreement or over cash collateral to be provided in connection with the Existing Letters of such asset Credit; and
(viii) any Security Interest created by a member of the Material Group to secure Financial Indebtedness under Onshore PRC Bank Group; andBorrowing not exceeding RMB500,000,000 in aggregate.
(d) For the avoidance of doubt, any Security Interest constituted by the Security Documents may be shared between (i) the Finance Parties and (ii) the Financial Indebtedness secured thereby is Financial Indebtedness ofany party to a derivative transaction entered into with an Obligor in connection with this Agreement, protecting against or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) benefiting from fluctuations in any rate or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior price pursuant to the date on which terms of an intercreditor agreement in form and substance satisfactory to the Facility Agent, Security Trustee and all Lenders at such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andtime.
Appears in 2 contracts
Samples: Facility Agreement (TTM Technologies Inc), Facility Agreement (TTM Technologies Inc)
Negative Pledge. (A) No Obligor shall (and the Company Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(aB) which is an Existing Encumbrance set out in:No Obligor shall (and the Borrower shall ensure that no other member of the Group will):
(i1) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Merger Closing DateGroup;
(2) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(3) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(ii4) Part 1B enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of Schedule 10 raising Financial Indebtedness or of financing the acquisition of an asset.
(Existing EncumbrancesC) provided that Clause 19.3(A) and Clause 19.3(B) do not apply to any Security or (as the principal amount secured thereby case may not be increased unless be) Quasi-Security, listed below:
(1) any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2cash collateral arrangements securing ancillary banking services;
(b2) which arises by operation of Law any netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbut only so long as (i) such arrangement does not permit credit balances of Obligors to be netted or set off against debit balances of members of the Group which are not Obligors and (ii) such arrangement does not give rise to other Security over the assets of Obligors in support of liabilities of members of the Group which are not Obligors;
(iii3) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement pursuant to any Hedging Agreement derivative transaction or other contract foreign exchange transaction entered into by a member of the Group which is permitted under Clause 25.12 19.5 (Limitations on HedgingFinancial Indebtedness), excluding any Security or Quasi-Security under a credit support arrangement;
(iv4) any Security or Quasi-Security existing on the date of this Agreement which is entered into approved by the Agent in writing and Security or Quasi-Security arising under the Finance Documents;
(5) any Security or Quasi-Security for taxes, fees, assessments or other government charges or levies, either not delinquent or being contested in good faith and for which any Obligor maintains adequate reserves on its books;
(6) purchase money Security or Quasi-Security on (i) Equipment acquired or held by any member Obligor incurred for financing the acquisition of the Bank Group Equipment securing no more than £50,000 in aggregate amount outstanding, or (ii) existing on terms which are generally no worse than Equipment when acquired, if the counterparty’s standard Security or usual terms Quasi-Security is confined to the property and entered into improvements and the proceeds of the Equipment;
(7) any leases or sub-leases and non-exclusive licences or sub-licences granted in the ordinary course of business any Obligor’s business, if the leases, sub-leases, licences and sub-licences permit granting the Security Agent Security or Quasi-Security;
(8) any Security created pursuant to a charge over deposit dated 10 July 2020 between Silicon Valley Bank and the Borrower;
(9) any Security or Quasi-Security incurred in the extension, renewal or refinancing of the relevant member indebtedness secured by any Security or Quasi-Security in paragraphs (1) to (7) above, provided that any extension, renewal or replacement Security or Quasi-Security shall be limited to the property encumbered by the existing Security or Quasi-Security and the principal amount of the Bank Groupsuch indebtedness shall not increase; or
(v10) which is a retention any lien arising by operation of title arrangement with respect to customer premises equipment law and in favour the ordinary course of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fulltrading;
(f11) which arises in respect of any judgment, award Security or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that Quasi-Security granted with the affected member prior written consent of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andAgent.
Appears in 2 contracts
Samples: Term Facility Agreement (Rockley Photonics Holdings LTD), Support Letter (Rockley Photonics Holdings LTD)
Negative Pledge. No Obligor shall (and the Company shall procure that no member Until such time as all of the Bank Group shall)payment Obligations of the Borrower have been Performed in full, without the prior written consent of an Instructing GroupBorrower agrees not to pledge, create encumber or assign (either collaterally or outright) (or permit such pledge, encumbrance or assignment) to subsist any Encumbrance over all Person or grant to any Person (or permit the granting to any Person) of its present a lien on or future revenues or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
a security interest in (i) Part 1A any developer or declarant's rights under the Timeshare Declaration other than in favor of Schedule 10 Lender (Existing Encumbrances) provided that unless an intercreditor agreement, in form and substance reasonably satisfactory to Lender and such Encumbrance other lender, is released within 10 Business Days of the Merger Closing Date; or
executed, addressing such developer or declarant's rights), (ii) Part 1B any contracts, licenses, permits, plans or other intangibles used in connection with the Property, the marketing and sale of Schedule 10 (Existing Encumbrances) provided that Timeshare Inventory and/or the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member management and/or operations of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (includingProperty, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises the Reservation System (except that a non-exclusive license to use the Reservation System granted to any Person, including Lender, shall not be deemed a pledge, encumbrance or assignment (either collaterally or outright) or the granting of a lien or security interest in respect violation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedgingthis subsection 6.2(e);
), (iv) is entered into by any member of property management agreements in any way relating to the Bank Group on terms which are generally no worse than Property, including, without limitation, the counterparty’s standard or usual terms Timeshare Management Agreement, and entered into in the ordinary course of business of the relevant member of the Bank Group; or
all replacements and substitutions thereof, (v) which is any sales or marketing agreements in effect from time to time concerning the sale and marketing of Timeshare Inventory at the Property, (vi) any other agreements now or hereafter in existence related to the development or operation of a retention of title arrangement timeshare project at the Property, including management, marketing, maintenance and service contracts, (vii) any intangibles, licenses and permits with respect to customer premises equipment in favour of a supplier the Property; or (or its Affiliate); provided that the title is only retained viii) any right to individual items of customer premises equipment in vote on matters with respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquiredowners of Timeshare Inventory may vote, if:
(i) such Encumbrance was and Borrower shall not created grant any proxy rights in contemplation of that regard. The aforementioned negative pledge shall be included within the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) financing statements that are filed and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andrecorded against Borrower. 6284.345.1224403.10 39 4/16/2018
Appears in 2 contracts
Samples: Acquisition Loan and Security Agreement (BBX Capital Corp), Acquisition Loan and Security Agreement (Bluegreen Vacations Corp)
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company shall procure that no member none of the Bank Group its Subsidiaries shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance Security over all any of its assets.
(b) For the purposes of this Paragraph 24 (Negative pledge), the term Security shall also include any arrangement or transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any of its present Subsidiaries, the sale, transfer or future revenues other disposal of any receivables on recourse terms or assets any arrangement under which money or the benefit of a bank account or other than account may be applied or set off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an Encumbrance:asset.
(c) Sub-Paragraph (a) which is an Existing Encumbrance set out in:above does not apply to any Security, listed below (“Permitted Security”):
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group Company in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts and any Security arising under general business;
(ii) conditions (Allgemeine Geschäftsbedingungen) of members of the Bank Group operated on a net balance basisbanks or financial institutions;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained arrangement pursuant to any Permitted Hedging, but excluding any Security under a credit support arrangement in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)relation to a hedging transaction;
(iv) is entered into any Security arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Company after the Original Execution Date and subject to which such asset is acquired, date of this Contract if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member Group Company;
(2) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by a Group Company; and
(ii3) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within [*****] months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hvi) any Security over or affecting any asset of any company which becomes a member of the Bank Group Company after the Original Execution Datedate of this Contract, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupGroup Company, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(3) the Security is removed or discharged within [*****] of that company becoming a Group Company;
(vii) any Security entered into pursuant to this Contract;
(viii) any Security provided with the prior written consent of the Bank;
(ix) any Security arising under any retention of title (including extended retention of title (verlängerter Eigentumsvorbehalt)), hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Company in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any Group Company;
(x) in respect of the Property to the extent restrictions on further charges are prohibited by Section 1136 BGB;
(xi) in respect of the Property interests, rights, easements or other matter whatsoever evidenced in section II of the land register (Grundbuch) as reflected in the copy of the land register excerpt (Grundbuchauszug) provided to the Bank;
(xii) any Security created or subsisting in order to comply with Section 8a of the German Altersteilzeitgesetz (AltTZG) or pursuant to Section 7e of the German Social Law Act No. 4 (Sozialgesetzbuch IV); or
(xiii) any contractor’s lien arising by operation of law (Werkunternehmerpfandrecht) in connection with repairs and maintenance work and any landlord’s pledge (Vermieterpfandrecht) arising by operation of law under a lease in favour of the relevant third party landlord.
Appears in 2 contracts
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security comprising a netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any Security over goods and documents of members title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Bank Group operated on a net balance basisGroup;
(iii) arises any Security existing and disclosed in respect writing to the Facility Agent prior to the date of netting this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)its maturity extended;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of that acquisition; LD857960/50
(B) the acquisition of such asset by a member of amount thereby secured has not been increased in contemplation of, or since the Bank Groupdate of, that acquisition; and
(iiC) unless the Financial Indebtedness secured thereby Security is Financial Indebtedness of, in favour of a government or is assumed by, the relevant acquiring member utility supplier and was required to be given as a condition of the Bank Groupperson who created the Security being permitted to carry on business or being provided with utility supplies, it is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) six Months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six Months of that company becoming a member of the Group;
(vi) any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
(vii) any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
(viii) any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 22.6(b)(vi)), does not exceed 5 per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
Appears in 2 contracts
Samples: Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC), Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC)
Negative Pledge. No Obligor (a) (Other than any Security Interest arising from operation of law or pursuant to mandatory provisions of applicable law), the Borrower shall (and the Company Borrower shall procure ensure that no member the Acquisition SPV will) not create any Security Interest on the Acquisition Shares.
(b) Except as provided below, the Borrower shall (and the Borrower shall ensure that each Material Subsidiary will) not create or allow to exist any Security Interest on any of its assets.
(c) Paragraph (b) above and paragraph (d) below do not apply to any Security Interest securing indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of Security given by the Borrower or any Material Subsidiary) does not exceed an amount equal to 600% of Shareholders’ Equity, by reference to the most recent consolidated annual financial statements of the Bank Group shall)Borrower.
(d) Subject to paragraphs (c) above, without the prior written consent Borrower may not (and the Borrower shall ensure that each of an Instructing Groupthe Material Subsidiaries do not):
(i) sell, create transfer or permit otherwise dispose of any of its assets on terms where it is or may be leased to subsist any Encumbrance over all or re-acquired or acquired by it or any of its present or future revenues or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawrelated entities;
(ii) is entered into by sell, transfer or otherwise dispose of any member of the Bank Group its receivables on recourse terms (other than in the normal its ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbusiness);
(iii) arises in respect enter into any arrangement under which money or the benefit of netting or set off arrangements contained in any Hedging Agreement a bank or other contract permitted under Clause 25.12 (Limitations on Hedging);account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where each such individual transaction is entered into by any member primarily as a method of the Bank Group on terms which are generally no worse than the counterparty’s standard raising Financial Indebtedness or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of financing the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andan asset.
Appears in 2 contracts
Samples: Facility Agreement (SK Ecoplant Co., Ltd.), Facility Agreement (SK Ecoplant Co., Ltd.)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises any Security Interest listed in Schedule 5 (Existing Security) except to the ordinary course of trading and/or extent the principal amount secured by operation of Lawthat Security Interest exceeds the amount stated in that Schedule;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law (or by an agreement evidencing a lien that would otherwise arise by operation of law) and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)business;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard payment or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; orclose out netting or set-off arrangement pursuant to any hedging transaction permitted under Clause 20.7(b)(iv) (Financial Indebtedness);
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:
(i) such Encumbrance or since, the acquisition and the Security Interest was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and;
(iivi) any Security Interest securing indebtedness the Financial Indebtedness secured thereby is Financial Indebtedness principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of a Security Interest not allowed under the preceding sub-paragraphs) does not exceed the greater of: (A) £100,000,000 or its equivalent, or is assumed by, the relevant acquiring member and (B) an amount equal to 10% of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) net assets of Clause 25.4 the Company as shown in the audited consolidated financial statements of the Company most recently delivered to the Facility Agent pursuant to Subclause 18.1 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased statements), at any time;
(hvii) any pledge of goods, the related documents of title and/or other related documents arising or created in the ordinary course of its business as security to a bank or financial institution for financial obligations directly relating to the goods or documents on or over which that pledge exists;
(viii) any Security Interest arising out of title retention provisions in a supplier’s standard conditions of supply of goods acquired by it in the ordinary course of its business;
(ix) any Security Interest arising pursuant to an order of attachment, distress, garnishee or affecting any asset injunction restraining disposal of any company which becomes a assets or similar legal process arising in connection with court proceedings being contested by the relevant member of the Bank Group after in good faith and which in any event is discharged within 60 days;
(x) any Security Interest over the Original Execution Date, shares or capital in the debtor of Non-Recourse Indebtedness;
(xi) any Security Interest (Replacement Security Interest) created to replace or renew or in substitution for any Security Interest otherwise permitted (Prior Security Interest) where such Encumbrance the Replacement Security Interest is created prior to the date on which such company becomes a member granted in respect of the Bank Group, if:same asset as the Prior Security Interest and does not secure an amount in excess of the amount secured by the Prior Security Interest;
(ixii) such Encumbrance was not any Security Interest over contracts entered into in the ordinary course of business for the supply of goods and/or services and over assets employed in the performance of those contracts, to secure counter-indemnity obligations in respect of any bond, guarantee, letter of credit or other instrument having a similar effect, in each case, issued in respect of obligations under or in connection with the performance of those contracts;
(xiii) any Security Interest over or any arrangement described in paragraph (b) above in respect of Unrestricted Margin Stock; or
(xiv) any other Security Interest created in contemplation or outstanding with the prior consent of the acquisition of such company; andMajority Banks.
Appears in 2 contracts
Samples: Credit Facilities Agreement (Amec PLC), Credit Facilities Agreement (Amec PLC)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset (collectively Quasi Security).
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any Security Interest given by a member of the Indian Group to secure debt falling within paragraph (f) of the definition of Permitted Financial Indebtedness in the ordinary course of trading and/or by operation of LawClause 1.1 (Definitions);
(ii) is any Security Interest set out in Schedule 9 (Existing Security) except to the extent the principal amount secured by that Security Interest exceeds the amount stated in that Schedule;
(iii) any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)balances;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; orbusiness;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect Quasi Security on an asset, or an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivi) such Encumbrance was not any Security Interest under a Finance Document;
(vii) any Quasi-Security arising as a result of a disposal which is permitted under Clause 20.6 (Disposals);
(viii) any Security Interest created in contemplation with the consent of the acquisition of such asset by a member of the Bank GroupMajority Lenders; and
(iiix) any Security Interest not allowed under the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member preceding sub-paragraphs securing indebtedness of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and Group the outstanding principal amount of Financial Indebtedness so secured is which (when aggregated with the outstanding principal amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not exceed, at any time;
, $40,000,000 (h) over or affecting of which not more than $20,000,000 shall be attributable to any asset of any company which becomes a member Security Interest securing indebtedness of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Adjusted Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and).
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Eros International PLC)
Negative Pledge. No Obligor (a) Except as permitted under paragraph (d) below, (i) neither the Borrower nor any of its Subsidiaries shall (and the Company Guarantor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, them will) create or permit to subsist any Encumbrance Security over all or any of its present assets; and (ii) the Guarantor shall not create or future revenues or assets other than an Encumbrance:
permit to subsist any Security over (a) any of the shares it holds in CME Romania B.V. if the aggregate Financial Indebtedness secured by such Security exceeds EUR 30,000,000 at any time; or (b) any intercompany loans made by it to any of its Subsidiaries or its Holding Company.
(b) The Guarantor shall not sell, transfer or otherwise dispose of any of the shares it holds in any of its Subsidiaries to third parties on terms whereby they are or may be re-acquired by an Obligor or any other member of the Group.
(c) Neither the Borrower nor any of its Subsidiaries will (and the Guarantor shall ensure that none of them will):
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Existing Encumbrance set out inasset.
(d) Paragraphs (a), (b) and (c) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basistrading;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting (or transaction ("Quasi-Security") described in paragraph (c) above affecting) any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hiv) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within three months of that company becoming a member of the Group; or
(v) any Permitted Security.
Appears in 1 contract
Samples: Facility Agreement (Central European Media Enterprises LTD)
Negative Pledge. No TCN Group Obligor shall (and the Company TCN shall procure that no member of the Bank TCN Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets to secure or prefer any present or future Financial Indebtedness of any Person other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of days following the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.219.2;
(b) which arises (i) by operation of Law or by (ii) under a contract having a similar effect effect, or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and TCN Group, in each case arising or entered into the ordinary course of business of the relevant member of the Bank TCN Group;
(c) which is created pursuant to any of the Finance Documents (including, for or the purposes of securing any Alternative Baseball Financing) and any Bridge Senior Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 19.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading business and/or by operation of Law;
(ii) is entered into by any member of the Bank TCN Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank TCN Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 19.12 (Limitations on Hedging)) or required pursuant to any other provision of this Agreement;
(iv) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate) in respect of Financial Indebtedness referred to in paragraph (f) of Clause 19.4 (Financial Indebtedness); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full; or
(v) is entered into by any member of the Bank TCN Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank TCN Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank TCN Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) which is created by any member of the TCN Group in substitution for any Existing Encumbrance referred to in paragraph (a)(ii) above of this Clause 19.2, provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 19.2;
(h) over or affecting any asset acquired by a any member of the Bank TCN Group after the Original Execution Date date of this Agreement and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank TCN Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Second Lien Facility Agreement (Telewest Global Inc)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset (any such matter being "Quasi-Security").
(c) Subject to paragraph (d) below, paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiii) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into law in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has and securing amounts not been paid in fullmore than 30 days overdue;
(fiii) which arises any lien arising by operating of law in respect the ordinary course of any judgment, award or order or any tax liability for which an appeal or proceedings for review business and securing amounts more than 30 days overdue provided that such overdue amounts are being diligently pursued contested by the relevant Obligor in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(giv) any Security over or affecting (or transaction ("Quasi-Security") described in paragraph (b) above) affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within three months of that company becoming a member of the Group; or
(vi) the Transaction Security;
(vii) any netting or set-off arrangement entered into under any hedging transaction permitted under Clause 24.14 where the obligations of the parties are calculated by reference to net exposure under that hedging transaction;
(viii) any Quasi-Security arising as a result of a sale, transfer or other disposal which is a permitted under Clause 24.4 (Disposals);
(ix) any Security or Quasi-Security created after the commencement of legal proceedings with a view to preserving the status quo between the litigants pending the outcome of those proceedings, provided that such Security or Quasi-Security does not secure Financial Indebtedness exceeding in aggregate US$1,000,000 (or its equivalent in another currency or currencies) at any time and is released forthwith upon final determination of such litigation provided that such Security or Quasi-Security shall be created or arise solely pursuant to a legal obligation or requirement;
(x) any Security or Quasi-Security over goods, documents of title to goods and related documents and insurances and their proceeds to secure liabilities of any member of the Group in respect of a letter of credit or other similar instrument issued for all or part of the purchase price and costs of shipment, insurance and storage of goods acquired by any member of the Group in the ordinary course of trading;
(xi) easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any member of the Group in the ordinary course of business;
(xii) any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
(xiii) any Quasi Security arising as a result of any factoring of receivables permitted under Clause 24.14;
(xiv) any Security or Quasi-Security with the consent of the Majority Lenders;
(xv) any Security or Quasi-Security created or subsisting to secure any obligations incurred in order to comply with the requirements of Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) and/or Section 7d of the German Sozialgesetzbuch IV;
(xvi) any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi Security given by any member of the Group other than any permitted under paragraphs (i) to (xv) above) does not at any time exceed US$1,500,000 (or its equivalent in another currency or currencies).
(d) Flexsys Indústria e Comercío Ltda is not permitted to create or permit to subsist any Security or Quasi-Security nor incur any secured or quasi-secured obligations (howsoever described) referred to in paragraph (c)(iv) to (c)(xv) above.
(e) No Belgian Obligor shall create any Security or Quasi-Security (including but by no means limited to any pledge) over or affecting any inventory of that Belgian Obligor.
Appears in 1 contract
Negative Pledge. No Obligor shall (The Borrower covenants that unless the Majority Lender gives prior written consent, it will not do any of the acts listed in the following items on and after the execution date of this Agreement, up until all of the obligations of the Borrower owed to the Lenders and the Company shall procure that no member of Agent under this Agreement are satisfied:
(1) Except for the Bank Group shall)following cases, without offer, or cause the prior written consent of an Instructing GroupAffiliate to offer, create any security (excluding any lien, possessory lien or permit other security provided for in Laws and Regulations) to subsist secure any Encumbrance over all or any of its present or future revenues or assets obligation other than an Encumbrancethe obligations under this Agreement without obtaining consent thereto from the Majority Lender:
(a) The Borrower newly acquires assets on which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2security interests have already been created;
(b) which arises by operation With regard to loans obtained for the purpose of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of acquiring assets (including loans with regard to the Bank Group refinancing thereof) and in each case arising or entered into finance lease (including capital lease), the ordinary course of business of the relevant member of the Bank Group;Borrower offers such assets as security:
(c) which Such offer of security is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) required under Laws and any Bridge Finance DocumentsRegulations;
(d) arising from any Finance Leases, Upon raising a fund by the method of securitization of assets or sale and leaseback arrangements (or Vendor Financing Arrangements permitted similar) arrangements, the Borrower offers any security to be incurred pursuant to Clause 25.4 (Financial Indebtedness)the extent necessary;
(e) Upon performing a foreign exchange transaction related to exports and imports, the Borrower offers any security on the freight and the xxxx of lading (including other documents certifying shipping contracts and insurance documents) relating to such exports and imports;
(f) In a project finance initiative in which arises in respect the Borrower participates as an investor, a holder of subordinated loan claims or other sponsor, the Borrower offers any right security on its equity of contributions to the project company (including the shares issued by the project company), subordinated loan claims and other claims for other providers of the finance;
(g) Any netting or set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose purposes of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;in connection with its cash pooling facilities; and
(iiih) arises in respect of Any payment or close out netting or set set-off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is arrangement pursuant to derivative transaction entered into by the Borrower in connection with protection against or benefit from fluctuation in any member of the Bank Group on terms which are generally no worse than the counterparty’s standard rate or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Groupprice; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:and
(i) such Encumbrance was Any other security securing obligations in an aggregate amount not created in contemplation to exceed 1 billion yen.
(2) Offer, or cause the Affiliate to offer, any security to secure the obligations under this Agreement for part of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andLenders.
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that a) In this Subclause, Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.
(b) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ac) which is an Existing Encumbrance set out inParagraph (b) does not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security Interest comprising a netting, set off or lien arrangement entered into by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basisbusiness;
(iii) arises in respect of netting any Security Interest on an asset, or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(iv) any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;
(v) any Security Interest over goods and subject products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which such asset is acquired, ifrequired to be paid within 6 months after the date upon which the same was first incurred;
(vi) set-off rights on market standard terms contained in any hedging agreement;
(vii) set-off rights in the ordinary course of trading;
(viii) any Security Interest created in substitution for any of the above Security Interests but only:
(iA) such Encumbrance was if the Security Interest is over the same asset;
(B) if the principal amount secured by that Security Interest does not created in contemplation of exceed the acquisition of such asset principal amount secured by a member of the Bank GroupSecurity Interest which is replaced; and
(iiC) if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and
(ix) any Security Interest securing indebtedness the amount of which (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (d) below) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial Indebtedness secured thereby is statements) (being as at the date of this Agreement the Original Financial Indebtedness of, or is assumed by, the relevant acquiring Statements).
(d) No member of the Bank GroupGroup may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and financing the acquisition of an asset unless the amount of Financial Indebtedness so secured is not increased at assets or receivables sold, transferred or disposed of under this paragraph (including any time;
(h) over or affecting any asset assets the subject of any company which becomes a member such arrangement on the date of this Agreement) (when aggregated with the amount of indebtedness secured under Subclause 20.5(c)(ix) above) does not exceed 10 per cent. of the Bank consolidated gross assets of the Group after as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial statements) (being as at the date of this Agreement the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinancial Statements).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company Parent shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, other than a Project Finance Subsidiary, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
(b) No Obligor shall (and the Parent shall ensure that no other member of the Group, other than a Project Finance Subsidiary, will):
(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Encumbrance:Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members balances;
(ii) any security for costs provided by any member of the Bank Group operated on a net balance basisin order to enable it to continue with court proceedings which are being brought by it or being defended by it in good faith;
(iii) arises in respect any retention of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is title arrangement entered into by any member of the Bank Group in the normal course of its trading activities on terms which are generally no worse than the counterparty’s standard or usual terms and entered into terms;
(iv) any security arising by operation of law or which is otherwise incidental to the normal conduct of the business of the Parent or any other member of the Group, including security arising by operation of law over any vessels owned by a Group member in the ordinary course of business of where the relevant member of the Bank Group; orunderlying claim, in each case, is not more than 60 days overdue;
(v) any security created or outstanding with the prior written consent of the Majority Banks or created or outstanding pursuant to the terms of the Finance Documents;
(vi) any security for Taxes either not yet assessed or, if assessed, not yet due or payable or which are contested;
(vii) any security in the form of pre-emption rights in respect of the shares in any Notional JV Company, Joint Venture or any other person who is not a retention member of title arrangement with respect to customer premises equipment the Group;
(viii) any security in favour of a supplier the Government of the Republic of Brazil over land, buildings and other assets in Brazil the value of which does not, in aggregate at any time, exceed US$1,000,000 (or its Affiliateequivalent); provided that ;
(ix) any security created in the title is only retained to individual items ordinary course of customer premises equipment business over or in respect of motor vehicles, computers and other usual office equipment the value of which the purchase price has not been paid does not, in fullaggregate at any time, exceed US$2,000,000 (or its equivalent);
(fx) which arises any security created by Class 3 Shipping Limited in respect favour of any judgment, award or order or any tax liability Sembawang Shipyard Pte Ltd pursuant to a deed of assignment and charge dated 12 January 2010 where the conditions for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect release of such judgment, award, order or tax liabilitysecurity contained in that deed have not been satisfied;
(gxi) any security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
: (iA) such Encumbrance the security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and
(iiB) the Financial Indebtedness principal amount secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed bysince the acquisition of, the relevant acquiring that asset by a member of the Bank Group, ; and (iii) that security is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) 6 months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition of such asset;
(hxii) any security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the security is created prior to the date on which such that company becomes a member of the Bank Group, if:
: (iA) such Encumbrance the security was not created in contemplation of the acquisition of such that company; (B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and (C) the security is removed or discharged within 6 months of that company becoming a member of the Group; and
(xiii) in addition to any security subsisting pursuant to paragraphs (i) to (xii) above any other security, provided that the aggregate amount secured by all such security falling within this paragraph (xiii) does not at any time exceed US$20,000,000 (or its equivalent).
Appears in 1 contract
Samples: Multicurrency Revolving Credit and Guarantee Facility Agreement (Subsea 7 S.A.)
Negative Pledge. (a) No Obligor shall (will, and the Company shall each Obligor will procure that no member none of the Bank Group shall), without the prior written consent of an Instructing Groupits Subsidiaries will, create or permit to subsist any Encumbrance over all on the whole or any part of its respective present or future revenues business, assets or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out inundertaking except for the following:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of Encumbrances constituted or evidenced by the Merger Closing Date; orSecurity Documents;
(ii) Part 1B of Schedule 10 (Existing Encumbrances) Encumbrances expressly permitted in writing by the Majority Lenders, provided that the principal amount of the indebtedness secured thereby may by such Encumbrances shall not at any time be increased unless any Encumbrance in respect of such increased beyond the amount would be permitted under another paragraph of this Clause 25.2expressly so permitted;
(biii) Encumbrances over assets the aggregate value of which arises is less than euro 500,000 (or its equivalent in other currencies) arising by operation of Law law (or by agreement to the same effect) in the ordinary course of business and not as a contract having a similar effect result of any default or under an escrow arrangement required by a trading counterparty omission on the part of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(civ) which is created pursuant Encumbrances over goods and documents of title to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) goods arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation letter of Lawcredit transactions entered into in the ordinary course of trade;
(iiv) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and Encumbrances over credit balances on bank accounts of members of the Bank Group operated together created in order to facilitate the operation of such bank accounts and other bank accounts of such members of the Group with such bank on a net balance basisbasis with credit balances and debit balances on the various accounts being netted off for interest purposes;
(iiivi) arises Encumbrances over assets (not being shares or stock) the aggregate value of which is less than euro 500,000 (or its equivalent in other currencies) acquired after the Effective Date and existing at the date of their acquisition but not created in contemplation of their acquisition, provided that (A) the principal amount secured by any such Encumbrance shall not be increased beyond the amount secured thereby at the date of such acquisition and (B) such Encumbrances are either released and discharged within three months of the date of such acquisition or, if there is a material cost in obtaining the removal of any such Encumbrance from any public register, all amounts and liabilities (actual or contingent, present or future) secured on or by any such Encumbrance are paid and discharged in full within three months of the date of such acquisition and the creditor has acknowledged in writing payment and discharge of all such amounts and liabilities;
(vii) Encumbrances arising automatically by operation of law in favour of any governmental authority in respect of netting Taxes or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms governmental charges which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of being contested by the relevant member of the Bank Group in good faith diligently pursued provided that a reserve or provision for the full amount of Tax or charges in dispute has been made in the Accounts of the Group; or;
(vviii) Encumbrances over certain of the assets of Xxxxxx.Xxx France S.A. under a nantissement de fonds de commerce which is Encumbrances have been irrevocably released under a retention Deed of title arrangement with respect to customer premises equipment Release dated before 15th December, 1998 and an Encumbrance over the shares of Free Ads Paper Srl which has been irrevocably released before 15th December, 1998 and in favour of a supplier each case where all debts, liabilities or amounts (actual or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not contingent, present or future) secured on or by such Encumbrance have been paid or discharged in full;
(fix) which arises in respect Encumbrances (not being over the shares or stock of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have Group) not otherwise permitted pursuant to paragraphs (i)-(viii) (inclusive) above together securing indebtedness in an aggregate principal amount not exceeding euro 3,000,000 (or will establish such reserves as may be required under applicable generally accepted accounting principles its equivalent in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andother currencies).
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, i) Not create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbranceassets.
(ii) Not:
(a1) which is sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Existing Encumbrance set out in:Obligor or any other member of the Group;
(i2) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its receivables on recourse terms;
(Existing Encumbrances3) provided that such Encumbrance is released within 10 Business Days enter into any arrangement under which money or the benefit of the Merger Closing Datea bank or other account may be applied, set-off or made subject to a combination of accounts; or
(4) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Indebtedness or of financing the acquisition of an asset.
(iii) Paragraphs (i) and (ii) Part 1B of above do not apply to any Security or (as the case may be) Quasi-Security, listed below:
(1) any Security or Quasi-Security listed in Schedule 10 15 (Existing EncumbrancesSecurity) provided that except to the extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security or Quasi-Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2that Schedule;
(b2) which arises by operation of Law any Permitted Encumbrances;
(3) any Security or by a contract having a similar effect or Quasi-Security entered into pursuant to any Finance Document;
(4) Liens securing Indebtedness permitted under an escrow arrangement required by a trading counterparty of any member of the Bank Group and Clause 13.2(r)(viii) and/or 13.2(r)(xii), provided that in each case arising (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or entered into the ordinary course of business fair market value, whichever is lower, of the relevant member property being acquired on the date of the Bank Groupacquisition;
(c5) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements netting or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii6) arises any Security in respect connection with the cash collateralization of netting or set off arrangements contained in any Hedging Agreement or other contract Indebtedness permitted under Clause 25.12 (Limitations on Hedging13.2(r)(xi) so long as the principal amount of Indebtedness secured by such Security does not at any time exceed the aggregate principal amount of Indebtedness permitted under Clause 13.2(r)(xi);
(iv7) is entered into any Security or Quasi-Security arising from precautionary Uniform Commercial Code financing statements regarding operating leases or consignments, provided such Security or Quasi-Security extends solely to the assets subject to such leases or consignments;
(8) Liens securing collateralized Repurchase Agreements constituting a borrowing of funds by the Guarantor or any member Subsidiary of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into Guarantor in the ordinary course of business for investment purposes in accordance with the Investment Policy of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullGuarantor;
(f9) which arises in respect of any judgment, award payment or order close out netting or set-off arrangement pursuant to any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired hedging transaction entered into by a member of the Bank Group after for the Original Execution Date and subject to which such asset is acquired, ifpurpose of:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Facility Agreement (Amtrust Financial Services, Inc.)
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company Borrower shall procure ensure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, Material Subsidiary will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:to secure Financial Indebtedness.
(b) paragraph (a) which is an Existing Encumbrance set out inabove does not apply to:
(i) Part 1A of any Security listed in Schedule 10 6 (Existing EncumbrancesSecurity) provided except to the extent the principal amount secured by that such Encumbrance is released within 10 Business Days of Security exceeds the Merger Closing Date; oramount stated in that Schedule;
(ii) Part 1B any Security over cash and/or securities securing counter indemnity claims of Schedule 10 (Existing Encumbrancesx) provided that any surety company issuing supersedeas bonds or similar instruments or (y) of any bank issuing bank-guarantees to such surety company, in each case in connection with legal proceedings initiated against the principal amount secured thereby may not be increased unless any Encumbrance Borrower by Oracle, Inc. or Versata Software, Inc., each as disclosed in respect section 24 (Litigation and Claims) of such increased amount would be permitted under another paragraph of this Clause 25.2the notes to the Original Financial Statements;
(biii) which arises any Security arising by operation of Law law (or by a contract an agreement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(csame effect) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)business;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into Security arising under general business conditions in the ordinary course of business business, including without limitation of any bank with whom the relevant member Borrower or a Material Subsidiary maintains a banking relationship in the ordinary course of the Bank Group; orbusiness;
(v) which any Security over assets acquired if the Security is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of that asset by the Borrower or the relevant Material Subsidiary and the principal amount secured has not been increased in contemplation of or since such acquisition and the Security is removed or discharged within 12 months of the date of the effective acquisition of such asset;
(vi) any Security over an asset of any member of the Group (other than the Borrower) which becomes a Material Subsidiary after the date of this Agreement (whether an existing member of the Group or any other entity which is acquired by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, date of this Agreement and upon such acquisition qualifies as Material Subsidiary) where such Encumbrance Security is created prior to the date on which such company becomes a it can be determined that the respective member of the Bank GroupGroup has become a Material Subsidiary (such determination to be made as contemplated in the definition of “Material Subsidiary” in Clause 1.1 (Definitions)) or where the Material Subsidiary is an entity acquired after the date of this Agreement and upon such acquisition qualifies as a Material Subsidiary, ifsuch Security is created prior to and not in contemplation of such acquisition;
(vii) any Security arising in connection with conditional sale and retention of title agreements;
(viii) any Security arising pursuant to or in connection with:
(i1) finance leases;
(2) securities lending transactions (including without limitation repurchase transactions);
(3) the sale, transfer or other disposal of receivables on recourse terms;
(4) cash management arrangements;
(5) netting or set-off arrangements; or
(6) framework / master agreements relating to derivatives transactions;
(ix) any Security over any asset held in Clearstream or Euroclear or any other securities depository or any clearing house in favour of any such Encumbrance was not created in contemplation securities depository or clearing house;
(x) any Security granted to another member of the acquisition Group;
(xi) any Security created or subsisting with the prior written consent of the Majority Lenders;
(xii) any Security created or subsisting to secure any obligations incurred in order to comply with the requirements of section 8a of the German Altersteilzeitgesetz and/or section 7e of the German Social Security Code (Sozialgesetzbuch IV) (if and to the extent the obligations so secured constitute Financial Indebtedness);
(xiii) any Security in Margin Stock, but only to the extent such companyMargin Stock constitutes more than 25 per cent. of the value of the assets of the Borrower and its Material Subsidiaries; and
(xiv) any Security for Financial Indebtedness the amount of which (when aggregated with the amount of any other Financial Indebtedness which has the benefit of Security not permitted under the preceding exceptions) does not exceed Euro 250,000,000 (following conversion into Euro, if necessary) at any time.
Appears in 1 contract
Negative Pledge. 21.3.1 No Obligor shall (and the Company Italian Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
21.3.2 No Obligor shall (and the Italian Borrower shall ensure that no other than an Encumbrance:member of the Group will):
(ai) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Existing Encumbrance set out inasset.
21.3.3 Paragraphs 21.3.1 and 21.3.2 above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be by that Security is increased unless beyond the amount stated in that Schedule, it being agreed that any Encumbrance in respect of such increased amount would increase shall be permitted under another to the extent that it falls in the basket set out in sub paragraph (vii)(A) or (B) of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of as the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednessmay be);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) any Security or Quasi-Security securing indebtedness permitted under paragraph 21.12.2, to the extent such Security or Quasi-Security is entered into by any member discharged within the date falling six months after the date of the Bank Group on terms which are generally no worse than relevant acquisition provided that if it is not so discharged it shall be permitted to the counterparty’s standard extent it falls within the basket set out in sub-paragraph (vii) below;
(v) any Security or usual terms Quasi-Security in connection with deposits to landlords for lease rentals or to any tax or customs and entered into excise authority, utility company or car leasing company, in each case granted in the ordinary course of the business of the relevant member of the Group;
(vi) any cash collateral granted in relation to the issue of a Bank GroupGuarantee up to an amount equal to €15,000,000 in the aggregate at any time (without double counting any liability of the Borrowers under such Bank Guarantee); or
(vvii) which is a retention of title arrangement with respect any other Security or Quasi-Security not referred to customer premises equipment in favour of a supplier sub-paragraph (or its Affiliate); provided that i) to (vi) above securing indebtedness permitted under Clause 21.12 (Indebtedness for Borrowed Money) the title is only retained to individual items of customer premises equipment in respect principal amount of which (A) in the purchase price has case of the Obligors does not been paid in full;
aggregate exceed 5 per cent of the Consolidated Total Assets or (fB) which arises in respect the case of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected other member of the Bank Group shall have does not in aggregate exceed twenty per cent of the Consolidated Equity of the Group, in each case as determined at the end of any Relevant Period by reference to the Consolidated Financial Statements or will establish such reserves the Consolidated Quarterly Financial Statements (as the case may be required under applicable generally accepted accounting principles be) in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andRelevant Period.
Appears in 1 contract
Samples: Loan Agreement (Luxottica Group Spa)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset (any such matter being "QUASI-SECURITY").
(c) Subject to paragraph (d) below, paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiii) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into law in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has and securing amounts not been paid in fullmore than 30 days overdue;
(fiii) which arises any lien arising by operating of law in respect the ordinary course of any judgment, award or order or any tax liability for which an appeal or proceedings for review business and securing amounts more than 30 days overdue PROVIDED THAT such overdue amounts are being diligently pursued contested by the relevant Obligor in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(giv) any Security over or affecting (or transaction ("QUASI-SECURITY") described in paragraph (b) above) affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within three months of that company becoming a member of the Group; or
(vi) the Transaction Security;
(vii) any netting or set-off arrangement entered into under any hedging transaction permitted under Clause 24.14 where the obligations of the parties are calculated by reference to net exposure under that hedging transaction;
(viii) any Quasi-Security arising as a result of a sale, transfer or other disposal which is a permitted under Clause 24.4 (Disposals);
(ix) any Security or Quasi-Security created after the commencement of legal proceedings with a view to preserving the status quo between the litigants pending the outcome of those proceedings, PROVIDED THAT such Security or Quasi-Security does not secure Financial Indebtedness exceeding in aggregate US$1,000,000 (or its equivalent in another currency or currencies) at any time and is released forthwith upon final determination of such litigation PROVIDED THAT such Security or Quasi-Security shall be created or arise solely pursuant to a legal obligation or requirement;
(x) any Security or Quasi-Security over goods, documents of title to goods and related documents and insurances and their proceeds to secure liabilities of any member of the Group in respect of a letter of credit or other similar instrument issued for all or part of the purchase price and costs of shipment, insurance and storage of goods acquired by any member of the Group in the ordinary course of trading;
(xi) easements, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto that do not (i) secure obligations for the payment of money or (ii) materially impair the value of such property or its use by any member of the Group in the ordinary course of business;
(xii) any Security or Quasi-Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
(xiii) any Quasi Security arising as a result of any factoring of receivables permitted under Clause 24.14;
(xiv) any Security or Quasi-Security with the consent of the Majority Lenders;
(xv) any Security or Quasi-Security created or subsisting to secure any obligations incurred in order to comply with the requirements of Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) and/or Section 7d of the German Sozialgesetzbuch IV;
(xvi) any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi Security given by any member of the Group other than any permitted under paragraphs (i) to (xv) above) does not at any time exceed US$1,500,000 (or its equivalent in another currency or currencies).
(d) Flexsys Industria e Comercio Ltda is not permitted to create or permit to subsist any Security or Quasi-Security nor incur any secured or quasi-secured obligations (howsoever described) referred to in paragraph (c)(iv) to (c)(xv) above.
(e) No Belgian Obligor shall create any Security or Quasi-Security (including but by no means limited to any pledge) over or affecting any inventory of that Belgian Obligor.
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal course of its banking arrangements;
(ii) any sale and leaseback arrangements for the purpose of netting debit and credit balances on bank accounts of members entered into by a member of the Bank Group operated on subject to a net balance basismaximum aggregate amount of £5,000,000 at any time outstanding;
(iii) arises any security for costs provided by any member of the Group in respect of netting order to enable it to continue with court proceedings which are being brought by it or set off arrangements contained being defended by it in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)good faith;
(iv) is any retention of title arrangement entered into by any member of the Bank Group in the normal course of its trading activities on terms which are generally no worse than the counterparty’s standard or usual terms terms;
(v) any Security arising by operation of law or which is otherwise incidental to the normal conduct of the business of the Company or any other member of the Group or the ownership of their properties and entered into which does not in the aggregate materially impair the use of such property in the operation of the business of the Company and the other members of the Group taken as a whole;
(vi) any Security in respect of taxes payable by a Subsidiary incorporated in the United States, where such taxes have not yet become subject to penalties for non-payment or the amount and validity of which is being contested in good faith by appropriate proceedings by that Subsidiary;
(vii) any Security created or outstanding with the prior written consent of the Majority Lenders;
(viii) any Security created by any Precious Metal Company which is party to a Consignment Agreement, in favour of or for the benefit of one or more Consignment Providers, to protect or improve their position as consignors under the Consignment Agreements, provided that such Security shall only be created over the business and assets of any Precious Metal Company.
(ix) any Security in respect of assets acquired or constructed by the Company or any other member of the Group after the date of this Agreement, which Security is created at the time of acquisition or completion of construction of such assets (or during the period of such construction) or within 120 days thereafter, to secure Financial Indebtedness incurred or assumed to finance all or any part of the purchase price of the acquisition or cost of construction of such assets (or any improvement thereon), provided that the aggregate principal amount of Financial Indebtedness secured by any such Security in respect of any such assets shall not exceed the fair market value of such assets and no such Security shall extend to or cover any other assets of the Company or any other member of the Group;
(x) any Security incurred or deposit made in the ordinary course of business (i) in connection with workers’ compensation, unemployment insurance and other types of the relevant member of the Bank Group; or
social security or retirement benefits or (vii) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier secure (or its Affiliateto obtain letters of credit that secure) the performance of tenders, statutory obligations, surety bonds, appeal bonds, bids, leases (other than Finance Leases); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full, performance bonds or purchase, construction or sales contracts and other similar obligations;
(fxi) any Security listed in Schedule 10 (Existing Security) and not falling within any other paragraph of this paragraph (c) (except for any Security granted in connection with the Existing Facility which arises shall be discharged on repayment and cancellation in full of the Existing Facility);
(xii) any Security securing any obligations in respect of any judgment, award letter of credit or order or guarantees of any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect subject to a maximum aggregate amount of such judgment, award, order or tax liability£10,000,000;
(gxiii) any Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(ii) the principal amount secured has not been increased in contemplation of, or since the acquisition of, that asset by a member of the Group; and
(iiiii) the Financial Indebtedness secured thereby that Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 6 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hxiv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(ii) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(iii) the Security is removed or discharged within 6 months of that company becoming a member of the Group; and
(xv) in addition to any security subsisting pursuant to paragraphs (i) to (xiv) above any other Security, provided that the aggregate amount secured by all such Security falling within this paragraph (xv) does not at any time exceed £30,000,000.
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure that no member of the Bank Regional Group shall), without the prior written consent of an Instructing Group, shall create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Regional Group shall:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of its assets on terms whereby they are or may be leased to or re-acquired by any member of the Merger Closing DateRegional Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into or permit to subsist any title retention arrangement;
(iv) enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into or permit to subsist any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any Security listed in Part 1 of Schedule 6 (Existing Security, Contingent Obligations and Investments) except to the ordinary course of trading and/or extent the principal amount secured by operation of Lawthat Security exceeds the amount stated in that Schedule;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Regional Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting trading so long as the debt which it secures is paid when due or set off arrangements contained contested in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)good faith by appropriate proceedings and properly provisioned;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or title retention arrangements arising pursuant to a supplier's usual terms of supply provided that there is no default in payment for any goods so supplied (and entered into in no other event is subsisting) which might entitle the ordinary course of business supplier to reclaim possession of the relevant member of the Bank Groupgoods; or
(v) which is a retention other Security, including Security permitted under sub-paragraph (c)(i) above, securing Financial Indebtedness of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Regional Group after the Original Execution Date and subject (as permitted pursuant to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 23.1 (Financial Indebtedness) and the amount )), all of which, when taken together, secures Financial Indebtedness so secured is in an aggregate outstanding principal amount not increased to exceed 5 per cent. of Regional Group Consolidated Assets at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) The Borrower shall not (and shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets to any person who is not a member of the Group on terms whereby they are or assets may be leased to or re-acquired by it or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance contractual set-off arrangements in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to including any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements netting or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances);
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basisbusiness;
(iii) arises any lien arising in respect connection with any retention of netting or set off title arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has property delivered but not been fully paid in fullfor;
(fiv) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 6 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within 6 months of that company becoming a member of the Group;
(vi) any Security created pursuant to any Finance Document;
(vii) any Security created for any Existing Debt, provided that such Security is discharged within 45 days of the Utilisation Date; or
(viii) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (vii) above) does not exceed €20,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inThe Borrower shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset (“Quasi-Security”).
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises save in the case of the Disbursement Account referred to in Clause 5.5(b) (Limitations on Utilisations), any netting or set-off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basistrading;
(iii) arises in respect of netting any Security or set off arrangements contained in any Hedging Agreement Quasi-Security entered into pursuant to or other contract permitted under Clause 25.12 any Finance Document or any agreements in connection with the Notes subject to the Intercreditor Agreement being entered into or pursuant to any Lease Agreement (Limitations on Hedging)as defined in the Term Sheet) entered into in compliance with the conditions set out under “Lessors and Lease Arrangements” in the Term Sheet or required by the Subconcession Bank Guarantor in connection with the Subconcession Bank Facility subject to the Intercreditor Agreement being entered into or;
(iv) is entered into by any member pledge over its shares in Great Wonders in favour of the Bank Group on terms which are generally no worse than lenders to the counterparty’s standard or usual terms Crown Macau Project and entered into any subordination and/or assignment of shareholder loan to Great Wonders in the ordinary course of business favour of the relevant member lenders to the Crown Macau Project;
(v) any pledge over its shares in Melco Hotels in favour of the Bank Groupholders of the Notes subject to granting a first priority pledge in favour of the Security Trustee and the Intercreditor Agreement being entered into; or
(vi) any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security other than any permitted under paragraphs (i) to (v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier above) does not exceed $5 million (or its Affiliateequivalent in another currency or currencies); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Samples: Facility Agreement (Melco PBL Entertainment (Macau) LTD)
Negative Pledge. a) No Obligor shall (and the Company shall procure that no member none of the Bank Group its Subsidiaries shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues assets.
b) No Obligor shall (and shall procure that none of its Subsidiaries shall) dispose or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out inagree to dispose of:
(i) Part 1A any of Schedule 10 its assets on terms whereby they are or may be leased to or reacquired or acquired (Existing Encumbrancesother than pursuant to a sale and leaseback transaction on normal commercial terms) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; orby any Obligor;
(ii) Part 1B enter into any arrangement under which money or the benefit of Schedule 10 (Existing Encumbrancesa bank or other account may be applied, set-off or made subject to a combination of accounts, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness.
c) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(Paragraphs a) and b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant above shall not apply to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements Security which:
(i) is an Existing Encumbrance provided that (i) such Existing Encumbrance and (ii) any such Security in respect of Financial Indebtedness to be refinanced by the Facilities shall be released without undue delay or, with respect to any land charges, shall be transferred to the member of the Group in connection with such refinancing;
(ii) arises in the ordinary course of trading and/or business solely by operation of Law;
law or on the basis of customary general terms and conditions (ii) is entered into by and not as a result of any default or omission on the part of any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisGroup);
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms cash-pooling agreements and hedging agreements entered into in the ordinary course of business business;
(iv) is created with the prior written consent of the relevant member of the Bank Group; orMajority Lenders;
(v) is securing inter-company loans not existing as of the date hereof which is a retention of title arrangement with respect (if such loans are made by an Obligor) are subordinated to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained Outstandings on terms acceptable to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullAgent;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) is over or affecting an asset of any asset acquired by entity which becomes a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance Security is created prior to the date on which such entity becomes a member of the Group;
(B) such Security was not created in contemplation of the acquisition of such asset by a member of the Bank Groupthat entity; and
(iiC) the Financial Indebtedness principal amount secured thereby by such Security has not been increased in contemplation of or since the acquisition of that entity;
(vii) is Financial Indebtedness of, over or is assumed by, the relevant acquiring affecting an asset acquired by any member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, ifthis Agreement provided that:
(iA) such Encumbrance Security was not created in contemplation of that asset being acquired; and
(B) the principal amount secured by such Security has not been increased in contemplation of or since the acquisition of such companythat asset;
(viii) secures Financial Indebtedness the outstanding principal amount of which (when aggregated with the outstanding principal amount of any other Financial Indebtedness having the benefit of Security given by any member of the Group) does not exceed USD 20,000,000 (or its equivalent in other currencies) at any time; andor
(ix) prior to the Delisting is over or affecting any shares of the Target held by any member of the Group.
Appears in 1 contract
Samples: Syndicated Multi Currency Term Loan and Revolving Credit Facilities Agreement (Qiagen Nv)
Negative Pledge. (a) In this Clause 23.15, Quasi-Security means an arrangement or transaction described in paragraph (ii) below.
(b) Except as permitted under paragraph (iii) below:
(i) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall)will) create or permit to subsist any Security over any of its assets.
(ii) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(A) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
(B) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(C) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(D) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(iii) Paragraphs (i) and (ii) above do not apply to any Security or (as the case may be) Quasi-Security, which is:
(A) Permitted Security; or
(B) a Permitted Transaction.
(c) Notwithstanding paragraph (b) above, no Obligor shall (and the Company shall ensure that no other member of the Group will) create or permit to subsist any Security or Quasi- Security over of any shares in the Target Group Entity (India) without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets other than an Encumbrance:the Lenders.
(ad) which is an Existing Encumbrance set out in:
The Company (i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days for itself and each member of the Merger Closing Date; or
(iiGroup) Part 1B of Schedule 10 (Existing Encumbrances) provided understands and acknowledges that the principal amount secured thereby may not be increased unless any Encumbrance it is their unequivocal intention to co-operate and comply with every applicable law and regulation in India in respect of such increased amount would this transaction, including, without limitation, The Foreign Exchange Management Act, 1999. Accordingly, in order to be consistent with the aforesaid, it is hereby agreed (and each Obligor undertakes) that no Security, Quasi-Security, security interest, encumbrance or similar interest will be created or permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty to subsist over the assets of any member of the Bank Group and in each case arising or entered into the ordinary course of business India without prior Authorisation from any Governmental Agency of the relevant member Republic of India (including without limitation, the Reserve Bank Group;
of India), where the same may be required. For the avoidance of doubt, nothing in this Clause 23.15 shall be construed (c) which and is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted not intended to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(econstrued) which arises in respect of as creating any right of setSecurity, Quasi-offSecurity, netting arrangementsecurity interest, title transfer encumbrance or title retention arrangements which:
(i) arises similar interest in the ordinary course assets of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in or directing the normal course disposal of its banking arrangements for the purpose any assets of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Samples: Facilities Agreement (StarTek, Inc.)
Negative Pledge. No Obligor shall (will, and the Company shall each Obligor will procure that no member of the Bank Group shall), without the prior written consent of an Instructing Groupwill, create or permit to subsist any Encumbrance over all on the whole or any part of its respective present or future revenues business, assets or assets other than an Encumbranceundertaking except for the following:
(a) which is an Existing Encumbrance set out in:Encumbrances constituted or evidenced by the Security Documents;
(ib) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of Encumbrances expressly permitted in writing by the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) Majority Lenders, provided that the principal amount of the indebtedness secured thereby may by such Encumbrances shall not at any time be increased unless any Encumbrance in respect of such increased beyond the amount would be permitted under another paragraph of this Clause 25.2expressly so permitted;
(bc) which arises Encumbrances arising by operation of Law law (or by agreement to the same effect) in the ordinary course of business and not as a contract having a similar effect result of any default or under an escrow arrangement required by a trading counterparty omission on the part of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) Encumbrances over goods and documents of title to goods arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness)in the ordinary course of letter of credit transactions entered into in the ordinary course of trade;
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and Encumbrances over credit balances on bank accounts of members of the Bank Group operated with Approved Banks together created in order to facilitate the operation of such bank accounts and other bank accounts of such members of the Group with such Approved Banks on a net balance basisbasis with credit balances and debit balances on the various accounts being netted off for interest purposes;
(iiif) arises Encumbrances over assets acquired after the Closing Date and existing at the date of their acquisition but not created in contemplation of their acquisition, provided that (A) the principal amount secured by any such Encumbrance shall not be increased beyond the amount secured thereby at the date of such acquisition and (B) such Encumbrances are released and discharged within three months after such acquisition;
(g) Encumbrances arising automatically by operation of law in favour of any governmental authority in respect of netting Taxes or set off arrangements contained governmental charges in any Hedging Agreement an aggregate amount not exceeding (pound)1,000,000 (or its equivalent in other contract permitted under Clause 25.12 (Limitations on Hedging)currencies) which are being contested by the relevant member of the Group in good faith diligently pursued provided that an appropriate reserve or provision has been made in the Accounts of the Group;
(ivh) is Encumbrances which may be constituted by retention of title arrangements entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into (A) in the ordinary course of business trading or (B) with the vendors of stock or raw materials over stock and/or raw materials purchased in the relevant member ordinary course of trading;
(i) Encumbrances over the Bank Groupasset financed or acquired created by any finance lease, hire purchase agreements and conditional sale agreements which are entered into primarily as a method of raising finance or financing the acquisition (as the case may be) of any vehicles, machinery, plant or equipment provided that such finance lease or agreement is permitted by Clause 21.11; or
(vj) which is a retention Encumbrances (not being over the shares of title arrangement with respect any member of the Group) not otherwise permitted pursuant to customer premises equipment paragraphs (a)-(i) (inclusive) above together securing indebtedness in favour of a supplier an aggregate principal amount not exceeding (pound)7,500,000 (or its Affiliateequivalent in other currencies); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that Encumbrances over the affected member assets of members of the Bank Group shall have incorporated or will establish established in the United Kingdom, Canada or the United States of America (or any part thereof) may not secure indebtedness in an aggregate principal amount (for all such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member members of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
Group) exceeding (i) such Encumbrance was not created pound)2,500,000 (or its equivalent in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andother currencies).
Appears in 1 contract
Samples: Supplemental Agreement (Dunlop Standard Aerospace Holdings PLC)
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(b) Paragraph (a) which is an Existing Encumbrance set out inabove does not apply to:
(i) Part 1A liens arising solely by operation of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days law and in the ordinary course of the Merger Closing Date; orbusiness;
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off existing in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by activities between any member of the Bank Group in the normal course of and its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisrespective suppliers or customers;
(iii) arises in respect rights of netting set-off arising by operation of law or set off arrangements contained in by contract by virtue of the provision to any Hedging Agreement member of the Group of clearing bank facilities, cash pooling facilities, overdraft facilities or other contract hedging facilities permitted under Clause 25.12 (Limitations on Hedging)this Agreement;
(iv) is entered into by any retention of title to goods supplied to any member of the Bank Group where such retention is required by the supplier in the ordinary course of its trading activities and on its standard terms and the goods in question are supplied on credit;
(v) Security (except for any Security expressed to be created as a floating charge) arising under finance leases, hire purchase, conditional sale agreements, or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 23.15 (Leasing Arrangements) and only to the extent such Security is granted by the relevant Obligor over assets comprised within or constituted by such arrangements;
(vi) Security arising under the Security Documents;
(vii) Security existing at the time of acquisition on or over any asset acquired by it after the Restatement Date or, in the case of a person which becomes a member of the Group after the Restatement Date, any Security existing on or over its assets when it became a member of the Group, in each case, if:
(A) such Security was not created in contemplation of or in connection with that acquisition or, as the case may be, it becoming a member of the Group;
(B) the principal amount secured has not been increased in contemplation of or in connection with that acquisition or, as the case may be, it becoming a member of the Group;
(viii) any Security to which the Majority Lenders have given their prior written consent;
(ix) inchoate Security for taxes, assessments or governmental charges or levies not yet due and payable and Security for taxes, assessments or governmental charges or levies, which are generally no worse being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the assets subject to any such Security;
(x) Security imposed by any court pursuant to a judgment or award not resulting in an Event of Default and in respect of which the relevant Group Company shall in good faith be initiating an appeal or proceedings for review in respect of which the court has granted a subsisting stay of execution pending such appeal or proceedings;
(xi) Security (other than the counterparty’s standard any Security imposed by ERISA) (a) imposed by law or usual terms and entered into deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, (b) incurred in the relevant member ordinary course of business (or in the Bank Groupcase of trade contracts in the ordinary course of trading) to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (c) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; or
provided that (vI) which is a retention of title arrangement with respect to customer premises equipment paragraphs (a), (b) and (c) hereof, such Security is for amounts not yet due and payable or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to any such Security, and (II) to the extent such Security is not imposed by law, such Security shall in no event encumber any property other than cash and Cash Equivalents which have been deposited with such security holder or has otherwise been subordinated to the Security securing the Secured Obligations hereunder pursuant to a landlord security waiver and access agreement;
(xii) Security in favour of a supplier (or its Affiliate); provided that customs and revenues authorities which secure payment of customs duties in connection with the title is only retained importation of goods to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullextent required by law;
(fxiii) which arises in respect of any judgment, award or order or any tax liability Security over deposits made to provide cash cover for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member obligations of the Bank Group shall have pursuant to bank guarantees issued in connection with Project Ani Acquisition and under which the Group has a maximum aggregate actual or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting contingent liability which does not at any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Grouptime exceed £2,500,000; and
(iixiv) any Security securing indebtedness the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the principal amount of Financial Indebtedness so secured is which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security other than any permitted under paragraphs (i) to (xviii) above) does not increased exceed $5,000,000 (or its equivalent in another currency or currencies) at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Samples: Facilities Agreement (Octel Corp)
Negative Pledge. No Obligor In this Clause 20.4, Quasi-Security means an arrangement or transaction described in paragraph (b) below.
(a) no Borrower shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) no Borrower shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by the Company or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to any Security or (as the case may be) Quasi- Security, listed below:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of any Security or Quasi-Security existing as at the Merger Closing Signing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that , to the extent it was notified to the Finance Parties prior to the Signing Date, except to the extent the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased by that Security or Quasi-Security exceeds the amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant notified to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of LawParties;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement pursuant to any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is hedging transaction entered into by a member of the Group for the purpose of:
(A) hedging any risk to which any member of the Bank Group on terms is exposed in the ordinary course of its property investment business; or
(B) its interest rate or currency management operations which are generally no worse than the counterparty’s standard or usual terms and entered into carried out in the ordinary course of business and for non-speculative purposes only, excluding, in each case, any Security or Quasi-Security under a credit support arrangement in relation to a hedging transaction;
(iv) any lien arising by operation of law and in the relevant ordinary course of its property investment business;
(v) any Security securing Existing Financial Indebtedness or Target Financial Indebtedness:
(A) which is granted by a member of the Bank Group over:
I. the property at Central Science Laboratory, Sand Xxxxxx, Xxxx, XX00 0XX with title number NYK111716; and
II. the property at Xxxxx Xxxx Xxxx, Xxxxxx Xxxxxx, XX0 0XX with provisional title number BM456970, (or, in each case, any real property asset(s) having a substantially equivalent aggregate value);
(B) which is granted by a member of the Group over any of its real property assets in order to release cash (the Released Cash) received by a member of a Group pursuant to a disposal permitted under Clause 20.5 (Disposals) from any Security or Quasi-Security over such cash securing the same Existing Financial Indebtedness or Target Financial Indebtedness, provided that:
I. the aggregate value of the real property asset(s) required to be secured in order release such cash is substantially equivalent to the Released Cash; and
II. the Released Cash is retained by a member of the Group; or
(vC) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired granted by a member of the Bank Group after over an asset acquired pursuant to an Accretive Acquisition, provided that: I. such Accretive Acquisition was financed using the Original Execution Date and subject to which such asset is acquired, if:
proceeds of a disposal permitted under Clause 20.5 (i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank GroupDisposals); and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Facilities Agreement
Negative Pledge. 21.3.1 No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
21.3.2 No Obligor shall (and the Company shall ensure that no other than an Encumbrance:member of the Group will):
(ai) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Existing Encumbrance set out inasset.
21.3.3 Paragraphs 21.3.1 and 21.3.2 above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be by that Security is increased unless beyond the amount stated in that Schedule, it being agreed that any Encumbrance in respect of such increased amount would increase shall be permitted under another to the extent that it falls in the basket set out in sub paragraph (vii)(A) or (B) of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of as the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednessmay be);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) any Security or Quasi-Security securing indebtedness permitted under paragraph 21.12.2, to the extent such Security or Quasi-Security is entered into by any member discharged within the date falling six months after the date of the Bank Group on terms which are generally no worse than relevant acquisition provided that if it is not so discharged it shall be permitted to the counterparty’s standard extent it falls within the basket set out in sub-paragraph (vii) below;
(v) any Security or usual terms Quasi-Security in connection with deposits to landlords for lease rentals or to any tax or customs and entered into excise authority, utility company or car leasing company, in each case granted in the ordinary course of the business of the relevant member of the Group;
(vi) any cash collateral granted in relation to the issue of a Bank GroupGuarantee up to an amount equal to €15,000,000 in the aggregate at any time (without double counting any liability of the Borrower under such Bank Guarantee); or
(vvii) which is a retention of title arrangement with respect any other Security or Quasi-Security not referred to customer premises equipment in favour of a supplier sub-paragraph (or its Affiliate); provided that i) to (vi) above securing indebtedness permitted under Clause 21.12 (Indebtedness for Borrowed Money) the title is only retained to individual items of customer premises equipment in respect principal amount of which (A) in the purchase price has case of the Obligors does not been paid in full;
aggregate exceed 5 per cent of the Consolidated Total Assets or (fB) which arises in respect the case of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected other member of the Bank Group shall have does not in aggregate exceed twenty per cent of the Consolidated Equity of the Group, in each case as determined at the end of any Relevant Period by reference to the Consolidated Financial Statements or will establish such reserves the Consolidated Quarterly Financial Statements (as the case may be required under applicable generally accepted accounting principles be) in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andRelevant Period.
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company Parent shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Parent shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of (including pursuant to cash pooling arrangements) or the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set set-off arrangements contained in of payments under any Hedging derivative transaction documented on market standard terms using an ISDA Master Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement Group in connection with respect to customer premises equipment the protection against or benefit from the fluctuation in favour of a supplier (any rate or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullprice;
(fii) which arises any lien arising by operation of law and in respect the ordinary course of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilitybusiness;
(giii) any Security over or affecting (or transaction (“Quasi-Security”) described in paragraph (b) affecting) any asset acquired by a member of the Bank Group concluded after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within six months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hiv) any Security or Quasi-Security over or affecting any asset of any company which becomes a member Subsidiary of the Bank Group Company after the Original Execution date of this Agreement or a Subsidiary of the Parent after the Parent Newco Accession Date, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member Subsidiary of the Bank GroupCompany or a Subsidiary of the Parent (as the case may be), if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within six months of that company becoming a Subsidiary of the Company or a Subsidiary of the Parent (as the case may be);
(v) any Security created or arising in the ordinary course of business of the relevant member of the Group which is specified below:
(A) title transfer or retention arrangements provided for under the terms and conditions applicable to stock supplies made to the relevant member of the Group in the ordinary course of trading;
(B) Security over or affecting any assets of any member of the Group incorporated in any state of the United States of America where the Security is created for the purpose of securing the payment of any taxes of such Subsidiary which are not yet due and payable or which are being contested in good faith and by appropriate proceedings diligently prosecuted provided that adequate reserves with respect thereto are maintained in the accounts of such Subsidiary in accordance with generally accepted accounting principles in the United States of America, unless and until any lien resulting therefrom attaches to its property and becomes enforceable against its other creditors;
(C) carriers’, warehousemen’s, mechanics’, materialmens’, repairmens’ or other liens arising in the ordinary course of business of any member of the Group which are not overdue for a period of more than 90 days or which are being contested in good faith by appropriate proceedings diligently prosecuted;
(D) subordinations of leaseholders’ interests in retail property to the interest of mortgagees of the fee interests therein in the ordinary course of business of any member of the Group incorporated in any state of the United States of America;
(E) pledges or deposits by any member of the Group incorporated in any state of the United States of America where the pledges or deposits are created for the purpose of securing the payment of any workmen’s compensation, unemployment insurances, social security or other similar public or statutory payment which that member of the Group is required to make pursuant to the federal, or as the case may be state or municipal, laws of the United States;
(F) Security over rental or other deposits made in the ordinary course of business of any member of the Group aggregating together not more than $2,000,000 (or the equivalent thereof); or
(vi) any Security securing indebtedness, obligations and/or liabilities of members of the Group not permitted under paragraphs (i) to (v) above up to an aggregate principal amount at any time of such indebtedness, obligations and/or liabilities not exceeding $125,000,000 (or its equivalent in other currencies).
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all or any part of its present the Charged Assets, or future revenues incur (or assets other than an Encumbrance:agree to incur) or have outstanding, any Financial Indebtedness secured by the Charged Assets.
(ab) which is an Existing Encumbrance set out inThe Borrower shall not:
(i) Part 1A sell, lease, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of the Merger Closing DateCharged Assets on terms whereby they are or may be leased to or re-acquired by any of its Affiliates;
(ii) sell, transfer or otherwise dispose of any of its receivables in respect of the Charged Assets on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account in respect of the Charged Assets may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance other preferential arrangement in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract the Charged Assets having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball FinancingClause 21.4(a) and any Bridge Finance Documents;
(dClause 21.4(b) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises in the ordinary course of trading and/or by operation of Lawany Security created pursuant to any Finance Document;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Borrower in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of trading provided that the relevant member of the Bank Groupdebt which is secured thereby is paid when due or contested in good faith by appropriate proceedings and properly provisioned; or
(viv) which is a retention of title arrangement any Security created with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member consent of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect Facility Agent (acting on the instructions of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of all the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andLenders).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets. *** Confidential material redacted and filed separately with the Commission.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security comprising a netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any Security over goods and documents of members title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Bank Group operated on a net balance basisGroup;
(iii) arises any Security existing and disclosed in respect writing to the Facility Agent prior to the date of netting this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)its maturity extended;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of that acquisition;
(B) the acquisition of such asset by a member of amount thereby secured has not been increased in contemplation of, or since the Bank Groupdate of, that acquisition; and
(iiC) unless the Financial Indebtedness secured thereby Security is Financial Indebtedness of, in favour of a government or is assumed by, the relevant acquiring member utility supplier and was required to be given as a condition of the Bank Groupperson who created the Security being permitted to carry on business or being provided with utility supplies, it is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) six months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of that company becoming a member of the Group;
(vi) any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
(vii) any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
(viii) any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 23.6(b)(vii)), does not exceed [***] per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
Appears in 1 contract
Samples: Multicurrency Loan Facility and Subscription Agreement (Xstrata PLC)
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company shall procure that no member of the Bank other Group Company shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) For the purposes of this Paragraph 23 (Negative pledge), the term Security shall also include any arrangement or future revenues transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by any Group Company, the sale, transfer or other than disposal of any receivables on recourse terms or any arrangement under which money or the benefit of a bank account or other account may be applied or set off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an Encumbrance:asset.
(c) Sub-paragraph (a) which is an Existing Encumbrance set out inabove does not apply to any Security, listed below:
(i) Part 1A of any Security listed in Schedule 10 M (Existing EncumbrancesPermitted Security) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased by that Security exceeds the amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawstated;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Company in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained arrangement pursuant to any Permitted Hedging, but excluding any Security under a credit support arrangement in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)relation to a hedging transaction;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Company after the Original Execution Date and subject to which such asset is acquired, date of this Contract if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member Group Company;
(2) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by a Group Company; and
(ii3) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three (3) months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hvi) any Security over or affecting any asset of any company which becomes a member of the Bank Group Company after the Original Execution Datedate of this Contract, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupGroup Company, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(3) the Security is removed or discharged within three (3) months of that company becoming a Group Company;
(vii) any Security entered into pursuant to this Contract;
(viii) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Company in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any Group Company; or
(ix) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by a Group Company other than any permitted under sub-paragraphs (i) to (viii) above) does not exceed 200,000 euros (or its equivalent in another currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligor shall (and a) Subject to paragraph (c) below, the Company shall procure not (and shall ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) Subject to paragraph (c) below, the Company shall not (and shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement intended to have and having substantially the same commercial effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect set-off or under an escrow lien arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leasesbut not limited to, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednesscash pooling arrangements);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basistrading;
(iii) arises any lien created by a Subsidiary in respect favour of netting or set off a bank in the ordinary course of its banking arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)pursuant to standard banking terms of business;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three Months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within three Months of that company becoming a member of the Group;
(vi) any Security created with the prior written consent of the Lenders;
(vii) any Security over receivables, assets and shares subsisting in respect of or granted from time to time by any member of the Group (other than the Company) under or in connection with, the Receivables Financing Agreement;
(viii) any disposal of any receivables by any member of the Group (other than the Company) from time to time under or in connection with the Receivables Financing Agreement;
(ix) any Security over goods and documents of title to goods arising in the ordinary course of letter of credit transactions entered into in the ordinary course of trading; or
(x) any Security securing indebtedness and/or any sale and leaseback involving an asset or assets the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security and/or any sale and leaseback involving an asset or assets other than any permitted under paragraphs (i) to (vii) above) does not exceed £25,000,000 (or its equivalent in another currency or currencies) outstanding at any time.
Appears in 1 contract
Samples: Facility Agreement (Best Buy Co Inc)
Negative Pledge. (a) No Obligor shall (and the Company Original Guarantor shall procure that no member of the Bank other Group Company shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) For the purposes of this Paragraph 25 (Negative pledge), the term Security shall also include any arrangement or future revenues transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by any Group Company, the sale, transfer or other than disposal of any receivables on recourse terms or any arrangement under which money or the benefit of a bank account or other account may be applied or set off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an Encumbrance:asset.
(c) Sub-paragraph (a) which is an Existing Encumbrance set out inabove does not apply to any Security, listed below:
(i) Part 1A any Security listed in Paragraph 6.5 (Security) of Schedule 10 G (Existing EncumbrancesRepresentation and Warranties) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased by that Security exceeds the amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawstated;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Company in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained arrangement pursuant to any Permitted Hedging, but excluding any Security under a credit support arrangement in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)relation to a hedging transaction;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Company after the Original Execution Date and subject to which such asset is acquired, date of this Contract if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member Group Company;
(2) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by a Group Company; and
(ii3) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hvi) any Security over or affecting any asset of any company which becomes a member of the Bank Group Company after the Original Execution Datedate of this Contract, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupGroup Company, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(3) the Security is removed or discharged within 6 months of that company becoming a Group Company;
(vii) any Security entered into pursuant to this Contract;
(viii) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Company in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by any Group Company;
(ix) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by a Group Company other than any permitted under sub-paragraphs (i) to (viii) above) does not exceed EUR3,000,000 (three million euro)
Appears in 1 contract
Samples: Finance Contract (Immunic, Inc.)
Negative Pledge. No TCN Group Obligor shall (and the Company TCN shall procure that no member of the Bank TCN Group shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets to secure or prefer any present or future Financial Indebtedness of any Person other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of days following the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.224.2;
(b) which arises (i) by operation of Law or by (ii) under a contract having a similar effect effect, or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and TCN Group, in each case arising or entered into the ordinary course of business of the relevant member of the Bank TCN Group;
(c) which is created pursuant to any of the Finance Documents (including, for or the purposes of securing any Alternative Baseball Financing) and any Bridge Second Lien Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 24.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading business and/or by operation of Law;
(ii) is entered into by any member of the Bank TCN Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank TCN Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 24.12 (Limitations on Hedging)) or required pursuant to any other provision of this Agreement;
(iv) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate) in respect of Financial Indebtedness referred to in paragraph (f) of Clause 24.4 (Financial Indebtedness); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full; or
(v) is entered into by any member of the Bank TCN Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank TCN Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank TCN Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) which is created by any member of the TCN Group in substitution for any Existing Encumbrance referred to in paragraph (a)(ii) above of this Clause 24.2, provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 24.2;
(h) over or affecting any asset acquired by a any member of the Bank TCN Group after the Original Execution Date date of this Agreement and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank TCN Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo Obligor shall:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Merger Closing DateGroup;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms so long as Lender retains a charge over such receivables;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any Security listed in Schedule 4 (Existing Security) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule;
(ii) any security created in favour of the Lender or Cascade US;
(iii) any lien arising by operation of law or retention of title arising (in each case) in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is entered into by purchase money Security upon or in any member fixed or capital assets to secure the purchase price or the cost of construction or improvement of such fixed or capital assets or to secure Indebtedness incurred solely for the purpose of financing the acquisition, construction or improvement of such fixed or capital assets (including Security securing any Capital Lease Obligations); provided that; (i) such Security secures Indebtedness permitted pursuant to Clause 14.20(c), (ii) such Security attached to such asset concurrently or within 90 days after the acquisition, improvement or completion of the Bank Group on terms which are generally no worse than construction thereof; (iii) and Security does not extend to any other asset; and (iv) the counterparty’s standard Indebtedness secured thereby does not exceed the cost of acquiring, constructing or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; orimproving such fixed or capital assets;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that Security on Trade Accounts and Inventory securing the title is only retained to individual items of customer premises equipment in respect of which Revolving Debt and Security on any assets securing the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andUS Term Loan.
Appears in 1 contract
Samples: Term Loan Agreement (Cascade Corp)
Negative Pledge. (i) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(ii) No Obligor shall (and each Obligors shall ensure that no of its Subsidiaries will):
(A) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other member of the Group;
(B) sell, transfer or otherwise dispose of any of its receivables on recourse terms other than an Encumbrance:to the German Borrower and where such transaction is not otherwise prohibited by this Agreement;
(aC) enter into any arrangement under which is an Existing Encumbrance set out in:
(i) Part 1A money or the benefit of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days a bank or other account may be applied, set-off or made subject to a combination of the Merger Closing Dateaccounts; or
(D) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(iii) Paragraphs (i) and (ii) Part 1B of above do not apply to:
(A) any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) (including any Security which has been Refinanced provided that the assets subject to such Security have not materially changed in any way) except to the extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2that Schedule;
(bB) which arises by operation of Law any netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiC) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and Security entered into in the ordinary course of business of the relevant member of the Bank Group; orunder customary general business conditions;
(vD) which is any lien arising by operation of law or regulatory requirement and in the ordinary course of business and not as a retention result of title arrangement with respect to customer premises equipment a default howsoever described;
(E) any Security arising by operation of law in favour of a supplier (any government, state or its Affiliate); provided that the title is only retained to individual items of customer premises equipment local authority in respect of Taxes which the purchase price has are either (a) not yet due and unpaid or (b) being contested in good faith by appropriate proceedings and for which adequate reserves have been paid in fullmade;
(fF) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and
(ii2) the Financial Indebtedness principal amount secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed by, since the relevant acquiring acquisition of that asset by a member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(hG) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company; and
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company;
(H) the Transaction Security;
(I) any Security which has been approved in writing by the Majority Lenders;
(J) any Security incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, including any Security securing letters of credit issued in the ordinary course of business in accordance with past practice;
(K) any Security over assets of the Norwegian Borrower 2 acquired with Financial Indebtedness permitted under paragraph (k) of the definition of Permitted Financial Indebtedness provided that such Security is removed upon the full discharge of the relevant Permitted Financial Indebtedness incurred to finance the payment of the purchase price for such asset; or
(L) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (A) to (I) above) does not exceed EUR 5,000,000 its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Third Amendment Agreement (Kronos International Inc)
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and each Obligor shall ensure that none of its Subsidiaries will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A liens arising solely by operation of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days law and in the ordinary course of the Merger Closing Date; ortrading;
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off existing in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by activities between any member of the Bank Group in the normal course of and its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisrespective suppliers or customers;
(iii) arises in respect rights of netting set-off arising by operation of law or set off arrangements contained in by contract by virtue of the provision to any Hedging Agreement member of the Group of clearing bank facilities, cash pooling facilities, overdraft facilities or other contract hedging facilities permitted under Clause 25.12 (Limitations on Hedging)this Agreement;
(iv) is entered into by any retention of title to goods supplied to any member of the Bank Group on terms which are generally no worse than where such retention is required by the counterparty’s standard or usual terms and entered into supplier in the ordinary course of business of its trading activities and on its standard terms and the relevant member of the Bank Group; orgoods in question are supplied on credit;
(v) which is Security (except for any Security expressed to be created as a retention of title arrangement with respect to customer premises equipment in favour of a supplier floating charge) (or its Affiliatea transaction (Quasi Security) described in paragraph (b) above) arising under finance leases, hire purchase, conditional sale agreements, or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 22.13 (Leasing Arrangements); provided that , and only to the title extent such Security or Quasi Security is only retained to individual items of customer premises equipment in respect of which granted by the purchase price has not been paid in fullrelevant Obligor over assets comprised within or constituted by such arrangements;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required Security arising under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilitya Security Document;
(gvii) over or affecting any asset acquired by until the first Utilisation Date, Security arising under a member of the Bank Group after Security Document (as defined in the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timeFacilities Agreement);
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Multicurrency Revolving Facility Agreement (Innospec Inc.)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, Material Subsidiary may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo Material Subsidiary may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts (other than in respect of a transaction permitted under paragraph (b)(iv) of Clause 17.7 (Financial Indebtedness)); or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises title retention arrangements (including rights to reclaim) or set-off provisions in each case which relate to any assets supplied to any member of the Group in the ordinary course of trading and/or by operation of Lawtrading;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)business;
(iv) is entered into by any member of the Bank Group Security Interest on terms which are generally no worse than the counterparty’s standard an asset, or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement, including for the avoidance of doubt the Permitted Acquisition, but only for the period of 3 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(iv) such Encumbrance was not any Security Interest entered into pursuant to a Finance Document;
(vi) any Security Interest created in contemplation pursuant to the general terms and conditions (Algemene Voorwaarden) of any member of the acquisition Dutch Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions;
(vii) any Security Interest on the credit balances of such asset any member of the Group with a bank or other financial institution as security for the liability of any member of the Group under any cash pooling or account balance or interest netting arrangements entered into by a member of the Bank GroupGroup in the ordinary course of its banking arrangements;
(viii) any Security Interest securing indebtedness with an original maturity of less than 12 months; and
(iiix) the Financial Indebtedness secured thereby is Financial Indebtedness of, any Security Interest securing indebtedness with an original maturity of 12 months or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and more the amount of Financial Indebtedness so secured is which (when aggregated with the amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not exceed US$30,000,000 or its equivalent at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior provided that, to the date on which extent such company becomes a member Security Interest is granted in an amount exceeding US$30,000,000, the Finance Parties shall share in and be secured by such Security Interest equally and rateably with such other loan, debt, guarantee or other obligations in respect of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andthat indebtedness.
Appears in 1 contract
Samples: Credit Facility Agreement (Oce N V)
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(b) Paragraph (a) which is an Existing Encumbrance set out indoes not apply to:
(i) Part 1A any Security Interest existing (or contemplated by the terms (as at the date of Schedule 10 this Agreement) of any financing arrangement referred to in Clause 20.7(b)(ii) (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days Financial Indebtedness))over any asset of a member of the Merger Closing Date; orGroup or of Mittal Steel USA or any of its Subsidiaries as at the date of this Agreement, but only to the extent that:
(iiA) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may by any such Security Interest is not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2increased;
(bB) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty the maturity of any member of the Bank Group and Financial Indebtedness secured by any such Security Interest is not extended; and
(C) any Financial Indebtedness secured by any such Security Interest is not refinanced, in each case arising or entered into after the ordinary course date of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthis Agreement;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any Security Interest arising out of retention of title provisions in respect a supplier’s standard conditions of netting or set off arrangements contained supply of goods where the goods in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations question are supplied on Hedging)credit and acquired in the ordinary course of business;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivi) such Encumbrance was not any Security Interest on a rental deposit given on leasehold premises in the ordinary course of trading;
(vii) any Security Interest entered into pursuant to a Finance Document;
(viii) any Security Interest securing Project Finance Indebtedness, but only to the extent that the Security Interest is created in contemplation on an asset of the acquisition of project being financed by the relevant Project Finance Indebtedness (and/or the shares in, and/or shareholder loans to, the company conducting such asset by a project where such company has no assets other than those relating to such project);
(ix) any hire purchase, lease or conditional sale agreement other than one which would, under the applicable generally accepted accounting principles for such member of the Group, be treated as a finance or capital lease;
(x) any Security Interest arising under clause 18 of the general terms and conditions (Algemene Voorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions;
(xi) any Security Interest or right of set-off which may be imposed by an account bank under the terms of its standard account documentation;
(xii) any Security Interest on an asset held in Clearstream Banking, société anonyme or Euroclear Bank S.A./N.V. as operator of the Euroclear System, or any other securities depository or any clearing house pursuant to its standard terms and procedures applicable in the ordinary course of trading;
(xiii) any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as pre-judgment security for costs or expenses where any member of the Group is prosecuting or defending such action in the bona fide interest of the Group;
(xiv) any Security Interest created pursuant to any order of attachment, distraint, garnishee order, arrestment, adjudication or injunction or interdict restraining disposal of assets or similar legal process arising in connection with pre-judgment court proceedings where any member of the Group is prosecuting or defending such action in the bona fide interest of the Group;
(xv) any Security Interest on any Margin Stock (as defined in Clause 20.14(a) (ERISA) that exceeds 25 per cent. of the value of the total assets subject to paragraph (a) above at such time; and
(iixvi) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and any Security Interest securing indebtedness the amount of Financial Indebtedness so secured is which (when aggregated with the amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not exceed 10 per cent. of the book value of the consolidated assets of the Group or its equivalent at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Negative Pledge. No Obligor shall (will, and the Company shall each Obligor will procure that no member none of the Bank Group shall)its Subsidiaries will, without the prior written consent of an Instructing Group, create or agree to create or permit to subsist any Encumbrance Security on or over all the whole or any part of its undertaking or assets (present or future revenues or assets other than an Encumbrancefuture) except for:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of any Security arising under the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2Finance Documents;
(b) Security arising in respect of any Property Financing and which arises is non-recourse to the relevant member of the Group other than its shares in, or receivables owed by, the relevant Propco;
(c) Security contemplated by the Approved Matters Memorandum;
(d) any Security to which the Facility Agent (on the instructions of the Majority Lenders) shall have given prior written consent or which does not secure any outstanding actual or contingent obligation;
(e) liens or trust relationships arising by operation of Law law or by contract to substantially the same effect and in the ordinary course of its trading activities and not as a contract having a similar effect result of any default or under an escrow arrangement required by a trading counterparty omission on the part of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(cf) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, off and retention of title transfer arising by operation of law or title retention arrangements which:
(i) arises by contract to substantially the same effect in the ordinary course of trading and/or activities between any member of the Group and its respective suppliers or customers;
(g) any Security, right of set-off or netting arising by operation of Law;
(ii) is law or by contract to substantially the same effect by virtue of the provision to any member of the Group of clearing bank facilities or overdraft facilities permitted under this Agreement or as otherwise required by the relevant clearing bank under its standard terms and conditions for operation of the relevant accounts and including any cash pooling, net balance or balance transfer arrangements entered into by any member of the Bank Group in the normal course respect of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullbanking arrangements;
(fh) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a any member of the Bank Group on or after the Original Execution Date date of this Agreement and subject to which such asset is acquired, ifprovided that:
(i) such Encumbrance Security was not created in contemplation of the acquisition of such asset by a such member of the Bank Group; and;
(ii) the Financial Indebtedness amount thereby secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed bysince the date of, the relevant acquiring member acquisition of such asset by the Bank Group, borrower; and
(iii) such Security is Financial Indebtedness which at all times falls released within paragraph (g) or (k) 90 days of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timesuch acquisition;
(hi) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance Security is created prior to the date on which such company becomes a member of the Bank Group, ifprovided that:
(i) such Encumbrance Security was not created in contemplation of the acquisition of such company;
(ii) the amount thereby secured has not been increased in contemplation of, or since the date of, the acquisition of such company; and
(iii) such Security is released within 90 days of such acquisition;
(j) any Security over an asset or investment acquired by a member of the Group securing Financial Indebtedness permitted under paragraph (b)(vi) and (vii) of Clause 24.14 (Financial Indebtedness) to be incurred to acquire that asset or investment provided that:
(i) such Security remains confined to such asset or investment or the assets of the entity which is acquired and does not secure any other Financial Indebtedness; and
(ii) the principal amount of such Financial Indebtedness is not increased after the date of such acquisition or investment, provided that the aggregate principal amount of all indebtedness secured by Security permitted under this paragraph (j) shall not exceed €25,000,000 (or its currency equivalent);
(k) any Security arising pursuant to an order of attachment or injunction restraining disposal of assets or similar legal process arising in connection with court proceedings which are contested by any member of the Group in good faith by appropriate proceedings with a reasonable prospect of success;
(l) any Security (except floating charges) arising under finance leases, hire purchase, conditional sale agreements or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 24.26 (Leasing Arrangements) and only to the extent such Security is granted by the relevant member of the Group over assets comprised within or constituted by such arrangements;
(m) any Security arising automatically by operation of law in favour of any Taxation or any government authority or organisation in respect of Taxes, assessments or governmental charges which are being contested by the relevant member of the Group in good faith and with a reasonable prospect of success;
(n) any Security over cash paid into an escrow account by any third party or any member of the Group pursuant to any deposit or retention of purchase price arrangements entered into pursuant to any disposal or acquisition made by a member of the Group other than in the ordinary course of trading which is permitted pursuant to Clauses 24.17 (Acquisitions and Investments) or 24.19 (Disposals) or which was effected (and such Security was created) prior to the date of this Agreement;
(o) any Security over goods and documents of title to goods arising in the ordinary course of letter of credit transactions entered into in the ordinary course of business; and
(p) Security not otherwise permitted pursuant to paragraphs (a) to (o) above together securing indebtedness in an aggregate principal amount not exceeding €25,000,000 (or its currency equivalent).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and each Obligor shall ensure that none of its Subsidiaries will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A liens arising solely by operation of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days law and in the ordinary course of the Merger Closing Date; ortrading;
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off existing in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by activities between any member of the Bank Group in the normal course of and its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisrespective suppliers or customers;
(iii) arises in respect rights of netting set-off arising by operation of law or set off arrangements contained in by contract by virtue of the provision to any Hedging Agreement member of the Group of clearing bank facilities, cash pooling facilities, overdraft facilities or other contract hedging facilities permitted under Clause 25.12 (Limitations on Hedging)this Agreement;
(iv) is entered into by any retention of title to goods supplied to any member of the Bank Group on terms which are generally no worse than where such retention is required by the counterparty’s standard or usual terms and entered into supplier in the ordinary course of business of its trading activities and on its standard terms and the relevant member of the Bank Group; orgoods in question are supplied on credit;
(v) which is Security (except for any Security expressed to be created as a retention of title arrangement with respect to customer premises equipment in favour of a supplier floating charge) (or its Affiliatea transaction (Quasi Security) described in paragraph (b) above) arising under finance leases, hire purchase, conditional sale agreements, or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 22.13 (Leasing arrangements); provided that , and only to the title extent such Security or Quasi Security is only retained to individual items of customer premises equipment in respect of which granted by the purchase price has not been paid in fullrelevant Obligor over assets comprised within or constituted by such arrangements;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required Security arising under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilitya Security Document;
(gvii) over or affecting any asset acquired by until the first Utilisation Date, Security arising under a member of the Bank Group after Security Document (as defined in the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timeFacilities Agreement);
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all or any of its present and future assets or future revenues or assets other than an Encumbrance:revenues.
(ab) which is an Existing Encumbrance set out inThe Borrower shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any other member of the Merger Closing DateGroup;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraph (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove does not apply to:
(i) arises in any Security granted to a Working Capital Facility Lender over Working Capital Assets as security for the ordinary course of trading and/or by operation of LawBorrower's obligations under a Working Capital Facility;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Borrower in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Grouptrading; or
(viv) which is a retention where the Agent (acting on the instructions of title arrangement with respect all the Lenders) has provided prior written consent, such consent to customer premises equipment in favour be provided within 15 Business Days from the date of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior notice to the date on which Lenders and such company becomes a member of the Bank Group, if:
(i) such Encumbrance was consent not created in contemplation of the acquisition of such company; andto be unreasonably withheld.
Appears in 1 contract
Samples: Term Facility Agreement (Sterlite Industries (India) LTD)
Negative Pledge. No Obligor 19.3.1 The Borrower shall not (and the Company shall procure ensure that no other member of the Bank Borrower Group shallwill), without the prior written consent in writing of an Instructing Groupthe Lender (which shall not be unreasonably withheld), create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
19.3.2 The Borrower shall not (and shall ensure that no other than an Encumbrance:member of the Borrower Group will):
(ai) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by any other member of the Borrower Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Existing Encumbrance set out inasset.
19.3.3 Clauses 19.3.1 and 19.3.2 above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Borrower Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any existing Security granted by the Borrower in favour of members Rizal Commercial Banking Corp. (RCBC) and/or Banco de Oro Universal Bank (BDO) which shall be discharged within three Business Days after the date of the Bank Group operated on a net balance basisfirst Loan;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is any Security entered into by pursuant to any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank GroupFinance Document; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that any Security granted by the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Borrower over or affecting any asset acquired by a member the Borrower to secure the purchase of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation or to secure the indebtedness incurred solely for the purpose of financing the acquisition of such asset by a member asset, provided that:
(a) the Borrower shall have given the Lender the first right of refusal to finance the Bank GroupBorrower's acquisition of such asset; and
(iib) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition aggregate purchase price of such company; andassets subject to Security pursuant to this Clause 19.3.3(v) shall not exceed US$2,000,000 (or its equivalent).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company Original Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Original Borrower shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group Security created and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Security Documents listed in Schedule 13 (including, for the purposes of securing any Alternative Baseball FinancingSecurity Documents) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthis Agreement;
(ii) any cash collateralisation with respect to the Loan Notes;
(iii) any Security listed in Schedule 9 (Existing Security) provided that such Security is fully discharged on or prior to the first Utilisation;
(iv) any netting, Security or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiv) arises any netting or set-off arrangement contained within any derivative contract entered into in the ordinary course of business;
(vi) any retention of title provisions contained in the terms of business of any supplier and entered into in the ordinary course of business;
(vii) any lien arising by operation of law and in the ordinary course of business;
(viii) a mortgage created by MSTC Blanch in favour of Bank XXXX and dated 2 August 2000 over the property at Xxxxxxx Xxxxxxxxxx 0, 000, Xxx Xxxxxx, Xxxxxxxx, Xxxxx;
(ix) a deed of charge created by Xxxxxxxx Xxxxx Group plc in favour of Barclays Bank PLC and dated 19 February 2001 over credit balance and in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)a share option loan facility;
(ivx) is entered into a rental deposit between Xxxxxxxx Xxxxx Limited and Banca CRT for Lira 62,400,000 for a rental guarantee provided by it in respect of Xxxxxxxx Xxxxx Limited's office in Rome;
(xi) any member of the Bank Group on terms which are generally no worse than the counterparty’s standard contractual set-off arrangement not constituting a mortgage, charge, security assignment or usual terms other security interest and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which Financial Indebtedness incurred in accordance with the purchase price has not been paid in fullterms of this Agreement on arm's length terms;
(fxii) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting (or transaction ("Quasi-Security") described in paragraph (b) above affecting) any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within six months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hxiii) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within six months of that company becoming a member of the Group; or
(xiv) any Security or Quasi-Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi-Security other than any permitted under paragraphs (i) to (vi) above) does not exceed (Pounds)3,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that a) In this Clause, Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.
(b) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ac) which is an Existing Encumbrance set out inParagraph (b) does not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security Interest comprising a netting, set off or lien arrangement entered into by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basisbusiness;
(iii) arises in respect of netting any Security Interest on an asset, or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(iv) any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;
(v) any Security Interest over goods and subject products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which such asset is acquired, ifrequired to be paid within 6 months after the date upon which the same was first incurred;
(vi) set-off rights on market standard terms contained in any hedging agreement;
(vii) set-off rights in the ordinary course of trading;
(viii) any Security Interest created in substitution for any of the above Security Interests but only:
(iA) such Encumbrance was if the Security Interest is over the same asset;
(B) if the principal amount secured by that Security Interest does not created in contemplation of exceed the acquisition of such asset principal amount secured by a member of the Bank GroupSecurity Interest which is replaced; and
(iiC) if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and
(ix) any Security Interest securing indebtedness the amount of which (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (d) below) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 17.1 (Financial Indebtedness secured thereby is statements) (being as at the date of this Agreement the Original Financial Indebtedness of, or is assumed by, the relevant acquiring Statements).
(d) No member of the Bank GroupGroup may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and financing the acquisition of an asset unless the amount of Financial Indebtedness so secured is not increased at assets or receivables sold, transferred or disposed of under this paragraph (including any time;
(h) over or affecting any asset assets the subject of any company which becomes a member such arrangement on the date of this Agreement) (when aggregated with the amount of indebtedness secured under Clause 19.7(c)(ix) above) does not exceed 10 per cent. of the Bank consolidated gross assets of the Group after as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 17.1 (Financial statements) (being as at the date of this Agreement the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinancial Statements).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance Security over all or any of its present or future revenues assets or assets other than an Encumbrance:comprised in the Project.
(ab) which is an Existing Encumbrance set out inNo Obligor shall:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets or assets comprised in the Project on terms whereby they are or may be leased to or re-acquired by an Obligor;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its Project receivables on recourse terms;
(iii) enter into or permit to subsist any title retention arrangement in relation to the Merger Closing DateProject;
(iv) enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into or permit to subsist any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any netting or set-off arrangement entered into by an Obligor in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of trading provided that the Bank Group operated on a net balance basisdebt which is secured thereby is paid when due or contested in good faith by appropriate proceedings and properly provisioned;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group an Obligor after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member an Obligor;
(B) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by an Obligor; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hiv) any Security over or affecting any asset of any company which becomes a member of the Bank Group an Obligor after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Groupan Obligor, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within three months of that company becoming a member of the Group;
(v) any Security created pursuant to any Finance Document; or
(vi) Security incurred and deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security benefits;
(vii) Security incurred and deposits made to secure performance of tenders, bids, leases, contracts or similar obligations in the ordinary course of business and not relating to the repayment of Financial Indebtedness;
(viii) leases or subleases granted in the ordinary course of business to others not materially interfering with the business of any Obligor;
(ix) any attachment or judgment Security not constituting an Event of Default; or any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by that Obligor other than any permitted under paragraphs (i) to (ix) above) does not exceed U.S.$1,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligor shall (The Borrower covenants that unless the Majority Lender gives prior written consent, it will not do any of the acts listed in the following items on and after the execution date of this Agreement, up until all of the obligations of the Borrower owed to the Lenders and the Company shall procure that no member of Agent under this Agreement are satisfied:
(1) Except for the Bank Group shall)following cases, without offer, or cause the prior written consent of an Instructing GroupAffiliate to offer, create any security (excluding any lien, possessory lien or permit other security provided for in Laws and Regulations) to subsist secure any Encumbrance over all or any of its present or future revenues or assets obligation other than an Encumbrancethe obligations under this Agreement without obtaining consent thereto from the Majority Lender:
(a) The Borrower newly acquires assets on which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2security interests have already been created;
(b) which arises by operation With regard to loans obtained for the purpose of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of acquiring assets (including loans with regard to the Bank Group refinancing thereof) and in each case arising or entered into finance lease (including capital lease), the ordinary course of business of the relevant member of the Bank Group;Borrower offers such assets as security:
(c) which Such offer of security is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) required under Laws and any Bridge Finance DocumentsRegulations;
(d) arising from any Finance Leases, Upon raising a fund by the method of securitization of assets or sale and leaseback arrangements (or Vendor Financing Arrangements permitted similar) arrangements, the Borrower offers any security to be incurred pursuant to Clause 25.4 (Financial Indebtedness)the extent necessary;
(e) Upon performing a foreign exchange transaction related to exports and imports, the Borrower offers any security on the freight and the xxxx of lading (including other documents certifying shipping contracts and insurance documents) relating to such exports and imports;
(f) In a project finance initiative in which arises in respect the Borrower participates as an investor, a holder of subordinated loan claims or other sponsor, the Borrower offers any right security on its equity of contributions to the project company (including the shares issued by the project company), subordinated loan claims and other claims for other providers of the finance;
(g) Any netting or set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose purposes of netting debit and credit (English Translation - For Reference Purpose Only) balances on bank accounts of members of the Bank Group operated on a net balance basis;in connection with its cash pooling facilities; and
(iiih) arises in respect of Any payment or close out netting or set set-off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is arrangement pursuant to derivative transaction entered into by the Borrower in connection with protection against or benefit from fluctuation in any member of the Bank Group on terms which are generally no worse than the counterparty’s standard rate or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Groupprice; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:and
(i) such Encumbrance was Any other security securing obligations in an aggregate amount not created in contemplation to exceed 1 billion yen.
(2) Offer, or cause the Affiliate to offer, any security to secure the obligations under this Agreement for part of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andLenders.
Appears in 1 contract
Samples: Loan Agreement
Negative Pledge. No Obligor shall (and the Company shall procure that a) In this Clause, Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest.
(b) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ac) which is an Existing Encumbrance set out inParagraph (b) does not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security Interest comprising a netting, set off or lien arrangement entered into by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basisbusiness;
(iii) arises in respect of netting any Security Interest on an asset, or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(iv) any Security Interest arising under any contract for the purchase of goods entered into in the normal course of trading;
(v) any Security Interest over goods and subject products or over the documents of title or insurance policies relating to such goods and products, arising in the ordinary course of trading in connection with letters of credit and similar transactions, provided such Security Interest secures only so much of the acquisition cost or selling price (and amounts incidental thereto) of these goods and products which such asset is acquired, ifrequired to be paid within 6 months after the date upon which the same was first incurred;
(vi) set-off rights on market standard terms contained in any hedging agreement;
(vii) set-off rights in the ordinary course of trading;
(viii) any Security Interest created in substitution for any of the above Security Interests but only:
(iA) such Encumbrance was if the Security Interest is over the same asset;
(B) if the principal amount secured by that Security Interest does not created in contemplation of exceed the acquisition of such asset principal amount secured by a member of the Bank GroupSecurity Interest which is replaced; and
(iiC) if the Security Interest which is replaced was only permitted to be outstanding for a certain period of time, to the extent the new Security Interest is not outstanding for any greater period; and
(ix) any Security Interest securing indebtedness the amount of which (when aggregated with the amount of assets or receivables sold, transferred or disposed of under paragraph (d) below) does not exceed 10 per cent. of the consolidated gross assets of the Group as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial Indebtedness secured thereby is statements) (being as at the date of this Agreement the Original Financial Indebtedness of, or is assumed by, the relevant acquiring Statements).
(d) No member of the Bank GroupGroup may sell, transfer or otherwise dispose of any of its receivables on recourse terms, in circumstances where the transaction is entered into primarily as a method of raising Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and financing the acquisition of an asset unless the amount of Financial Indebtedness so secured is not increased at assets or receivables sold, transferred or disposed of under this paragraph (including any time;
(h) over or affecting any asset assets the subject of any company which becomes a member such arrangement on the date of this Agreement) (when aggregated with the amount of indebtedness secured under Clause 20.7(c)(ix) above) does not exceed 10 per cent. of the Bank consolidated gross assets of the Group after as shown in the most recent audited consolidated financial statements of the Company delivered to the Facility Agent pursuant to Clause 18.1 (Financial statements) (being as at the date of this Agreement the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinancial Statements).
Appears in 1 contract
Samples: Term and Revolving Facilities Agreement (Smith & Nephew PLC)
Negative Pledge. No Obligor shall (and 2.1 For the Company shall procure that no member duration of the Bank Group shall)Facility the Borrower shall not without written consent of the Lender:
(a) create, without issue or allow to come into being any guarantee, indemnity, debenture, stock, charge, lien or other encumbrance, on all or part of its undertaking, property or other assets, its uncalled capital or revenue, except for liens arising by operation of law or in the ordinary course of business, or
(b) borrow any money, obtain any advance or credit in any form, other than normal trade credit, or enter into any hire purchase, credit sale, conditional sale or deferred payment agreements as purchaser, or any leasing agreements as lessee, except with the prior written consent of an Instructing Groupthe Lender; or
(c) change the terms of employment or remuneration of any Director; or
(d) make payments to the Directors by way of loan, create divided or bonus; or
(e) create, or permit to subsist subsist, any Encumbrance Security over all or any of its present assets; or
(f) sell, transfer or future revenues otherwise dispose of any of its receivables or assets on recourse terms; or
(g) enter into any arrangement under which money or the benefit of a bank or other than account may be applied, set-off or made subject to a combination of accounts; or enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Indebtedness or financing the acquisition of an Encumbranceasset
2.2 Paragraph 2.1shall not apply to:
(a) which is an any Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of Security, except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided extent that the principal amount secured thereby may not be increased unless any Encumbrance by that Existing Security exceeds the amount stated in respect the definition of such increased amount would be permitted under another paragraph of this Clause 25.2;Existing Security; or
(b) which arises by operation of Law any netting or by a contract having a similar effect or under an escrow set-off arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its Borrower’s banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;balances; or
(iiic) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement under any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);hedging transaction entered into for the purpose of:
(ivi) hedging any risk to which the Borrower is entered into by any member exposed in its ordinary course of trading; or
(ii) the Bank Group on terms Borrower’s interest rate or currency management operations which are generally no worse than the counterparty’s standard or usual terms and entered into carried out in the ordinary course of business of the relevant member of the Bank Groupand for non-speculative purposes only, excluding, in each case, any Security under a credit support arrangement in relation to a hedging transaction; or
(vd) which is a retention any lien arising by operation of title arrangement with respect to customer premises equipment law and in favour the ordinary course of a supplier (or its Affiliate)trading; provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;or
(fe) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Borrower after the Original Execution Date and subject to which such asset is acquired, date of this agreement if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; andBorrower;
(ii) the Financial Indebtedness principal amount secured thereby has not been increased in contemplation of or since the acquisition of that asset by the Borrower; and
(iii) the Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within one month of the Bank Group, is Financial Indebtedness which at all times falls within paragraph date of acquisition of the asset; or
(f) any Security entered into under any Transaction Document; or
(g) any Security arising under any retention of title, hire purchase or (k) conditional sale arrangement or arrangements having similar effect in respect of Clause 25.4 (Financial Indebtedness) goods supplied to the Borrower in the ordinary course of trading and on the amount supplier’s standard or usual terms and not arising as a result of Financial Indebtedness so secured is not increased at any time;default or omission by the Borrower; or
(h) over or affecting any asset Security securing Indebtedness, the principal amount of which (when aggregated with the principal amount of any company other Indebtedness which becomes a member has the benefit of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
Security other than any permitted under paragraphs (ia)- (g) such Encumbrance was above) does not created exceed £10,000 (or its equivalent in contemplation of the acquisition of such company; andanother currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligors
(a) Subject to paragraph (c) below, no Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, will create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inSubject to paragraph (c) below, no Obligor will:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law sell, transfer or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty otherwise dispose of any member of the Bank Group and in each case arising its assets on terms whereby they are or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant may be leased to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of setre-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or acquired by operation of Lawan Obligor;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to: Senior Secured Credit Facility Agreement
(i) any netting or set-off arrangement entered into by any member of the Bank Group Obligor in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of trading or pursuant to paragraph (c) of Clause 14.4 (Indemnity to the Bank Group operated on a net balance basisSecurity Agent);
(iii) arises any lien over goods and documents of title to goods arising in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member letter of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and credit transactions entered into in the ordinary course of business trading where such letter of credit transactions are entered into in connection with the relevant member purchase of the Bank Group; orthose goods;
(iv) any finance or capital lease of vehicles or equipment;
(v) which is a retention any set-off arrangement entered into under any of title arrangement with respect to customer premises equipment in favour of a supplier (the Hedging Agreements or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullany other hedging arrangement;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting (or transaction (“Quasi-Security”) described in paragraph (b) above affecting) any asset acquired by a member of the Bank Group an Obligor after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Groupsuch Obligor; and
(iiB) the Financial Indebtedness principal amount of indebtedness secured thereby is Financial Indebtedness has not been increased in contemplation of, or is assumed by, since the relevant acquiring member acquisition of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timethat asset by such Obligor;
(hvii) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group an Obligor after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Groupan Obligor, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company; and
Appears in 1 contract
Samples: Loan Agreement (Hanarotelecom Inc)
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company shall procure that no member of the Bank other Group Company shall), without the prior written consent of an Instructing Group, ) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) For the purposes of this Paragraph 23 (Negative pledge), the term Security shall also include any arrangement or future revenues transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by any Group Company, the sale, transfer or other than disposal of any receivables on recourse terms or any arrangement under which money or the benefit of a bank account or other account may be applied or set off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an Encumbrance:asset.
(c) Sub-paragraph (a) which is an Existing Encumbrance set out inabove does not apply to any Security, listed below:
(i) Part 1A any Security listed in Paragraph 4 (Security) of Schedule 10 G (Existing EncumbrancesRepresentation and Warranties) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased by that Security exceeds the amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawstated;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Company in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained arrangement pursuant to any Permitted Hedging, but excluding any Security under a credit support arrangement in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)relation to a hedging transaction;
(iv) is entered into any lien arising by operation of law and in the ordinary course of trading;
(v) any member Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Group Company in the Bank Group ordinary course of trading and on terms which are generally no worse than the counterpartysupplier’s standard or usual terms and entered into in the ordinary course not arising as a result of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any default or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullomission by any Group Company;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Company after the Original Execution Date and subject to which such asset is acquired, date of this Contract if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member Group Company;
(2) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by a Group Company; and
(ii3) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 (three) months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any time;such asset; or
(hvii) any Security over or affecting any asset of any company which becomes a member of the Bank Group Company after the Original Execution Datedate of this Contract, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupGroup Company, if:
(i1) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(2) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(3) the Security is removed or discharged within 3 (three) months of that company becoming a Group Company.
Appears in 1 contract
Samples: Finance Contract (Cellectis S.A.)
Negative Pledge. 24.3.1 No Obligor shall, and each Obligor shall procure no member of the Group shall, create or permit to subsist any Security over any of its assets.
24.3.2 No Obligor shall (and the Company each Obligor shall procure that no member of the Bank Group shall)):
(A) sell, without the prior written consent transfer or otherwise dispose of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present assets on terms whereby they are or future revenues may be leased to or assets re-acquired by an Obligor or any other than an Encumbrance:member of the Group;
(aB) which is an Existing Encumbrance set out in:sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iC) Part 1A enter into any arrangement under which money or the benefit of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days a bank or other account may be applied, set-off or made subject to a combination of the Merger Closing Dateaccounts; or
(iiD) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
24.3.3 Clauses 24.3.1 and 24.3.2 above do not apply to:
(cA) which is created pursuant to any of the Finance Documents (including, for Security constituted by the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Security Documents;
(dB) arising from any Finance Leases, sale and leaseback arrangements netting or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer off arrangement entered into by an Obligor or title retention arrangements whicha member of the Group:
(i1) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking and trading arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii2) arises in respect of netting or set off arrangements contained in under any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)entered into in accordance with this Agreement;
(ivC) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; orwhich are not more than 30 days overdue or which are being contested in good faith and by appropriate proceedings;
(vD) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment any Security over cash deposited as collateral in respect of which abandonment obligations relating to the purchase price has not been paid in fullwhole or any part of any Borrowing Base Asset;
(fE) which any Security that arises in respect of any judgment, award under or order pursuant to a Project Document or any tax liability for equivalent document relating to a Petroleum Asset which an appeal is not a Borrowing Base Asset which secures only amounts owing under that Project Document or proceedings for review equivalent document to another party thereto and does not secure Financial Indebtedness and which amounts are not more than 30 days overdue or which are being diligently pursued contested in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilityfaith and by appropriate proceedings;
(gF) over any Security consented to by the Majority Lenders;
(G) Security imposed by any governmental authority for taxes, assessments, charges or affecting any asset acquired levies not yet due or which are being contested in good faith and by appropriate proceedings;
(H) pledges or deposits under worker’s compensation, unemployment insurance and other social security or similar legislation;
(I) deposits to secure the performance by a member of the Bank Group after of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety, stay, appeal and indemnity bonds, performance bonds and other obligations of a like nature incurred in the Original Execution Date and subject to which such asset is acquired, if:
ordinary course of business not exceeding *** redacted commercially sensitive term negotiated between the parties *** (ior its equivalent in other currencies) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any timeaggregate;
(hJ) over or affecting any asset the deposit of up to *** redacted commercially sensitive term negotiated between the parties *** for a letter of credit dated 7 May 2008 and issued by Standard Bank Plc in favour of Occidental of Yemen (Block 75) LLC;
(K) Security on assets of any company corporation or other entity which becomes a member of the Bank Group after the Original Execution Datedate hereof, where provided that such Encumbrance is created prior to Security was in existence at the date on which time such company corporation becomes a member of the Bank Group, if:
Group and were not created in anticipation or contemplation thereof and provided that (i) such Encumbrance was the principal amount secured has not created been increased in contemplation of or since the acquisition and (ii) such Security is discharged with *** redacted commercially sensitive term negotiated between the parties *** of the date of the acquisition; or
(L) Security on the assets of any Obligor (not forming part of a Borrowing Base Asset and not any interest under a Project Document) which are not otherwise permitted above if the indebtedness, liabilities or other obligations secured are incurred in the ordinary course of business and in any event the aggregate amount of such company; andindebtedness, liabilities or other obligations so incurred and secured by such Security are not, at any time, in the aggregate in excess of *** redacted commercially sensitive term negotiated between the parties *** (or its equivalent in other currencies).
24.3.4 Notwithstanding Clause 24.3.3 above, any reference in any Finance Document to Security (other than Transaction Security) which is permitted thereunder is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Transaction Security to any other Security permitted thereunder.
Appears in 1 contract
Samples: Borrowing Base Facility Agreement (Transglobe Energy Corp)
Negative Pledge. No (a) Except as provided below, no Obligor shall (other than the Parent) may, and the Company shall procure that no member of the Bank Material Group shall), without the prior written consent of an Instructing GroupMember or Security Provider (other than TTM International) will, create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets assets.
(b) No Obligor (other than an Encumbrance:
the Parent) may, and the Company shall procure that no Material Group Member or Security Provider (aother than TTM International) which is an Existing Encumbrance set out inwill:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its present or future assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateMaterial Group or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset (present or future).
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises in any Security Interest constituted by the ordinary course of trading and/or by operation of LawSecurity Documents;
(ii) is any Security Interest comprising a netting or set-off arrangement entered into by any a member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is entered into any Security Interest given, by any an Obligor or member of the Bank Group on terms which are generally no worse than listed in Part 1 (Existing Security Interest) of Schedule 5 (Existing Security Interest, Loans and Guarantees), provided that the counterparty’s standard or usual terms and entered into principal amount secured is not increased from the amount stated in the ordinary course of business of the relevant member of the Bank Group; orthat Schedule;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (any Security Interest on an asset, or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject date of this Agreement but only to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivi) such Encumbrance was any Security Interest on an asset, or an asset of any person, acquired or to be acquired by a Borrower to secure indebtedness raised for the purpose of financing or refinancing the acquisition or development of that asset but only to the extent that the principal amount secured by that Security Interest does not created in contemplation exceed the cost of the acquisition of such asset or development;
(vii) any Security Interest over cash collateral required to be provided under this Agreement; and
(viii) any Security Interest created by a member of the Material Group to secure Financial Indebtedness under Onshore PRC Bank Group; andBorrowing not exceeding RMB500,000,000 in aggregate.
(d) For the avoidance of doubt, any Security Interest constituted by the Security Documents may be shared between (i) the Finance Parties and (ii) the Financial Indebtedness secured thereby is Financial Indebtedness ofany party to a derivative transaction entered into with an Obligor in connection with this Agreement, protecting against or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) benefiting from fluctuations in any rate or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior price pursuant to the date on which terms of an intercreditor agreement in form and substance satisfactory to the Security Trustee at such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andtime.
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inThe Borrower shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant Paragraphs (a) and (b) above do not apply to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichSecurity listed below:
(i) arises any netting or set-off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiii) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement pursuant to any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is hedging transaction entered into by a member of the Borrower for the purpose of:
(A) hedging any risk to which any member of the Bank Group on terms Borrower is exposed in its ordinary course of trading; or
(B) its interest rate or currency management operations which are generally no worse than the counterparty’s standard or usual terms and entered into carried out in the ordinary course of business and for non-speculative purposes only, excluding, in each case, any Security under a credit support arrangement in relation to a hedging transaction;
(iii) any Security arising in connection with the whole business securitisation under which Dignity (2002) Limited is the borrower and to which the Borrower is party;
(iv) any lien arising by operation of law and in the relevant member ordinary course of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Borrower after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member the Borrower;
(B) the principal amount secured has not been increased in contemplation of or since the Bank Groupacquisition of that asset by the Borrower; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 12 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hvi) any Security over or affecting any asset of any company which becomes a member of the Bank Group Borrower after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupBorrower, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within 12 months of that company becoming the Borrower;
(vii) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Borrower in the ordinary course of trading and on the supplier's standard or usual terms and not arising as a result of any default or omission by the Borrower; or
(viii) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by the Borrower other than any permitted under paragraphs (i) to (vii) above) does not exceed £5,000,000 (or its equivalent in another currency or currencies).
Appears in 1 contract
Samples: Facility Agreement
Negative Pledge. 22.4.1 No Obligor shall (and the Company Obligors shall procure ensure that no other member of the Bank Net1 Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
22.4.2 No Obligor shall (and the Obligors shall ensure that no other than an Encumbrance:member of the Net1 Group will):
(a) which is sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days Obligor or any other member of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2Net1 Group;
(b) which arises by operation of Law sell, transfer or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty otherwise dispose of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Groupits receivables on recourse terms;
(c) which is created pursuant enter into or permit to subsist any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documentstitle retention arrangement;
(d) arising from enter into or permit to subsist any Finance Leasesarrangement under which money or the benefit of a bank or other account may be applied, sale and leaseback arrangements set-off or Vendor Financing Arrangements permitted made subject to be incurred pursuant to Clause 25.4 (Financial Indebtedness);a combination of accounts; or
(e) which arises enter into or permit to subsist any other preferential arrangement having a similar effect, in respect circumstances where the arrangement or transaction is entered into primarily as a method of any right raising Financial Indebtedness or of set-off, netting arrangement, title transfer or title retention arrangements which:financing the acquisition of an asset.
22.4.3 Clauses 22.4.1 and 22.4.2 do not apply to the following Security (each a Permitted Encumbrance):
(ia) arises any Security given or purported to be given as Transaction Security;
(b) any Security referred to in Schedule 10 (Disclosure Schedule) given as at the Signature Date;
(c) any lien arising by operation of law and in the ordinary course of trading and/or trading, and not as a result of any default or omission by operation any member of Lawthe Net1 Group;
(iid) is any netting or set-off arrangement entered into by any member of the Group with an Approved Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances, but only if the arrangement does not permit credit balances on bank accounts of Obligors to be netted with debit balances of members of the Bank Net1 Group operated on a net balance basiswhich are not Obligors;
(iiie) arises in respect any netting of payments under a Permitted Treasury Transaction (including netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour close-out of a supplier (or its AffiliatePermitted Treasury Transaction); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Net1 Group after the Original Execution Signature Date and subject to which such asset is acquired, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Net1 Group;
(ii) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Net1 Group; and
(iiiii) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph date of acquisition of such asset;
(g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) Security over or affecting any asset of any company which becomes a member of the Bank Net1 Group after the Original Execution Date, Signature Date where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Net1 Group, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(ii) the principal amount secured has not been increased in contemplation of or since the acquisition of that company; and
(iii) the Security is removed or discharged within 3 months of the date of that company becoming a member of the Net1 Group;
(h) any Security arising under:
(i) a finance or capital lease; or
(ii) any retention of title, hire purchase or conditional sale arrangement; or
(iii) arrangements having a similar effect in respect of goods supplied to a member of the Net1 Group in the ordinary course of trading and on the supplier's standard or usual terms and not as a result of any default or omission by any member of the Net1 Group;
(i) any Security over any rental deposits in respect of immovable property where the relevant lease was entered into in the ordinary course of business and on arm's length terms;
(j) any Security arising as a result of a Permitted Disposal;
(k) any Security arising as a consequence of any Finance Lease permitted pursuant to Clause 22.5.8 (Financial indebtedness) or any Security securing any liabilities under any Permitted Guarantee permitted pursuant to Clauses 22.12.2 to 22.12.11 (Third party guarantees) (inclusive), provided that, at any applicable time the aggregate value of any such Security contemplated in this Clause shall not exceed R10,000,000;
(l) any Security expressly permitted in writing by the Facility Agent.
Appears in 1 contract
Samples: Common Terms Agreement (Net 1 Ueps Technologies Inc)
Negative Pledge. 21.3.1 No Obligor shall (and the Company Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
21.3.2 No Obligor shall (and the Borrower shall ensure that no other than an Encumbrance:member of the Group will):
(ai) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Existing Encumbrance set out inasset.
21.3.3 Paragraphs 21.3.1 and 21.3.2 above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be by that Security is increased unless beyond the amount stated in that Schedule, it being agreed that any Encumbrance in respect of such increased amount would increase shall be permitted under another to the extent that it falls in the basket set out in sub paragraph (vii)(A) or (B) of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of as the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednessmay be);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 trading (Limitations on Hedgingnxxx’esercizio ordinario dell’attività commerciale caratteristica dell’impresa);
(iv) any Security or Quasi-Security securing indebtedness permitted under paragraph 21.12.2, to the extent such Security or Quasi-Security is entered into by any member discharged within the date falling six months after the date of the Bank Group on terms which are generally no worse than relevant acquisition provided that if it is not so discharged it shall be permitted to the counterparty’s standard extent it falls within the basket set out in sub-paragraph (vii) below;
(v) any Security or usual terms Quasi-Security in connection with deposits to landlords for lease rentals or to any tax or customs and entered into excise authority, utility company or car leasing company, in each case granted in the ordinary course of the business of the relevant member of the Group;
(vi) any cash collateral granted in relation to the issue of a Bank GroupGuarantee up to an amount equal to €15,000,000 in the aggregate at any time (without double counting any liability of the Borrower and/or Luxottica U.S. Holdings Corp. (as the case may be) under such Bank Guarantee); or
(vvii) which is a retention of title arrangement with respect any other Security or Quasi-Security not referred to customer premises equipment in favour of a supplier sub-paragraph (or its Affiliate); provided that i) to (vi) above securing indebtedness permitted under Clause 21.12 (Indebtedness for Borrowed Money) the title is only retained to individual items of customer premises equipment in respect principal amount of which (A) in the purchase price has case of the Obligors does not been paid in full;
aggregate exceed 5 per cent of the Consolidated Total Assets or (fB) which arises in respect the case of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected other member of the Bank Group shall have does not in aggregate exceed twenty per cent of the Consolidated Equity of the Group, in each case as determined at the end of any Relevant Period by reference to the Consolidated Financial Statements or will establish such reserves the Consolidated Quarterly Financial Statements (as the case may be required under applicable generally accepted accounting principles be) in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andRelevant Period.
Appears in 1 contract
Negative Pledge. No Obligor shall (The Borrower will not, and the Company shall procure will ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Groupwill, create or permit to subsist have outstanding any Encumbrance Security on or over all or any of its present or future revenues or assets other than an Encumbrancetheir respective Assets, except for:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A Security existing as at the date of Schedule 10 (Existing Encumbrances) the Subordinated Debt Facility Agreement and any replacement of any such Security provided that such Encumbrance replacement Security (x) relates to the same Assets as the Security that is released within 10 Business Days replaced; and (y) secures Indebtedness of the Merger Closing Date; or
same creditor and represents an extension of the Indebtedness secured thereby (ii) Part 1B but, except with the prior consent of Schedule 10 (Existing Encumbrances) provided that the principal Majority Banks, the principal, capital or nominal amount secured thereby by any initial or replacement Security referred to in this paragraph (a) may not be increased unless any Encumbrance in respect beyond the maximum such amount secured by the relevant Security at the date of such increased amount would be permitted under another paragraph the Deed of this Clause 25.2Amendment);
(b) which arises liens arising solely by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group law and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Groupbusiness;
(c) which is created pursuant Security relating to any of the Finance Documents (including“cautions”, for the purposes of securing any Alternative Baseball Financing) guarantees, surety bonds and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into similar transaction in the ordinary course of business and not at any time exceeding in aggregate €10,000,000;
(d) Security arising in respect of the purchase of machinery and equipment in the ordinary course of business and granted over such assets to secure Indebtedness raised to finance the acquisition thereof;
(e) Security for taxes or governmental charges contested in good faith and in relation to which adequate reserves have been made;
(f) Security resulting from the securitisation transactions permitted under Clause 19.4 (Disposals) of this Agreement following the date of the Deed of Amendment;
(g) Security resulting from financial leases permitted under Clause 19.4 (Disposals) of this Agreement to the extent granted over the relevant leased assets following the date of the Deed of Amendment;
(h) Security required by law to be created in order to implement the Strategic Plan or T&D;
(i) Security arising out of title retention provisions in a supplier’s standard conditions of supply of goods acquired by the relevant member of the Bank Group; or
(v) which is a retention Group in the ordinary course of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullbusiness;
(fj) which arises in respect any Security existing at the time of acquisition on or over any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected Asset acquired by it (otherwise than from another member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(gGroup) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of or in connection with that acquisition (provided that, except with the prior consent of the Majority Banks, the principal, capital or nominal amount secured by any such Security and outstanding at the time of acquisition may not be increased);
(k) any Security not existing at the time of such asset acquisition on or over any Asset acquired by a it (otherwise than from another member of the Bank Group) after the date of the Deed of Amendment and created over the relevant Asset at the time of that acquisition permitted under this Agreement;
(l) any Security created over Assets acquired after the date of the Deed of Amendment and securing Project Finance Indebtedness provided that the only Assets which are the subject of that Security are Assets which are the subject of the relevant Project;
(m) Security created in the ordinary course of business over assets having a value, and securing Indebtedness, not exceeding in aggregate €20,000,000 per annum or, if and for so long as the Borrower is Investment Grade, €50,000,000 per annum, for all members of the Group; and
(iin) any other Security created or outstanding with the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member prior consent of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andMajority Banks.
Appears in 1 contract
Samples: Revolving Credit Agreement (Alstom)
Negative Pledge. No Obligor (a) Except as provided for in paragraph (c) below, the Borrower shall (and the Company shall procure ensure that no neither it nor any other member of the Bank Group shall), without the prior written consent of an Instructing Group, will create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inExcept as provided for in paragraph (c) below, the Borrower shall ensure that neither it nor any other member of the Group will:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days any of its assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any other member of the Merger Closing DateGroup;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any Security entered into by any member of the Bank Group (other than the Borrower) on arm's length terms which is existing as at the date of this Agreement or any Security entered into by any member of the Group (other than the Borrower) which replaces any such Security provided that the amount thereby secured is not increased;
(ii) any Security entered into by any member of the Group (other than the Borrower) on arm's length terms to secure any Permitted Financial Indebtedness provided that the aggregate amount thereby secured does not exceed the aggregate amount of such Permitted Financial Indebtedness;
(iii) any netting or set-off arrangement entered into by any member of the Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)balances;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; ortrading;
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting (or transaction ("Quasi-Security") described in paragraph (b) above affecting) any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security or Quasi-Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hvi) any Security or Quasi-Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security or Quasi-Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security or Quasi-Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security or Quasi-Security is removed or discharged within three months of that company becoming a member of the Group;
(vii) any Security entered into pursuant to any Finance Document;
(viii) any Security created or incurred by the Borrower with respect to its obligations where such obligations do not exceed in the aggregate EUR 25,000,000 (or its equivalent in other currencies) at any one time, where such Security is not otherwise permitted pursuant to the other provisions of this Clause 19.3;
(ix) any Security created or incurred by any member of the Group to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature in each case granted in the ordinary course of business by such member of the Group provided that where such Security is created or incurred by the Borrower, the aggregate amount thereby secured does not exceed EUR 10,000,000 at any time;
(x) any Security created or incurred by any member of the Group (other than the Borrower) encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements of such member of the Group, including rights of offset and set-off provided that any such contractual or warranty requirements are entered into in the ordinary course of business of such member of the Group;
(xi) any Security created or incurred by any member of the Group (other than the Borrower) for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted, provided that any reserve or other appropriate provision as shall be required in conformity with US GAAP shall have been made therefore;
(xii) any Security created or incurred by any member of the Group (other than the Borrower) arising by reason of any judgment, decree or order of any court provided that any appropriate legal proceedings that may have been duly initiated for the review of such judgment, decree or order shall not have been fully terminated or the period within which such proceedings may be initiated shall not have expired;
(xiii) purchase money Security created or incurred by any member of the Group (other than the Borrower) to finance the acquisition of property or assets in the ordinary course of business by such member of the Group where such Security is created within 90 days of such acquisition and provided that the related purchase money Financial Indebtedness is:
(A) Permitted Financial Indebtedness;
(B) the aggregate amount thereof does not exceed the cost of such property or assets; and
(C) not secured by any property or assets other than the property and assets so acquired;
(xiv) any Security created or incurred by any member of the Group (other than the Borrower) or deposits made in the ordinary course of business by any member of the Group (other than the Borrower) in connection with workers' compensation, unemployment insurance and other types of social security, including any Security created or incurred by such member of the Group securing letters of credit issued in the ordinary course of business consistent with past practice of such member of the Group in connection therewith, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) of such member of the Group; and
(xv) any Security created or incurred by any member of the Group (other than the Borrower) in the ordinary course of business of such member of the Group securing reimbursement obligations with respect to any commercial letter of credit and which encumbers documents and other property relating to such letters of credit and products and proceeds thereof.
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company Italian Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Italian Borrower shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of any Security listed in Schedule 10 7 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be by that Security is increased unless beyond the amount stated in that Schedule, it being agreed that any Encumbrance in respect of such increased amount would increase shall be permitted under another to the extent that it falls in the basket set out in sub-paragraph (vii)(A) or (B) of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of as the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtednessmay be);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) any Security or Quasi-Security securing indebtedness permitted under paragraph (b) of Clause 22.12 (Indebtedness for Borrowed Money), to the extent such Security or Quasi-Security is entered into by any member discharged within the date falling six months after the date of the Bank Group on terms which are generally no worse than relevant acquisition provided that if it is not so discharged it shall be permitted to the counterparty’s standard extent it falls within the basket set out in sub-paragraph (vii) below;
(v) any Security or usual terms and entered into Quasi-Security in connection with deposits to landlords for lease rentals or to any tax or customs & excise authority, utility company or car leasing company, in each case granted in the ordinary course of the business of the relevant member of the Group;
(vi) any cash collateral granted in relation to the issue of a Bank GroupGuarantee up to an amount equal to €15,000,000 in the aggregate at any time (without double counting any liability of the Borrower under such Bank Guarantee); or
(vvii) which is a retention of title arrangement with respect any other Security or Quasi-Security not referred to customer premises equipment in favour of a supplier sub-paragraph (or its Affiliate); provided that i) to (vi) above securing indebtedness permitted under Clause 22.12 (Indebtedness for Borrowed Money) the title is only retained to individual items of customer premises equipment in respect principal amount of which (A) in the purchase price has case of the Obligors does not been paid in full;
aggregate exceed 5 per cent. of the Consolidated Total Assets or (fB) which arises in respect the case of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected other member of the Bank Group shall have does not in aggregate exceed twenty per cent. of the Consolidated Equity of the Group, in each case as determined at the end of any Relevant Period by reference to the Consolidated Financial Statements or will establish such reserves the Consolidated Quarterly Financial Statements (as the case may be required under applicable generally accepted accounting principles be) in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andRelevant Period.
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(b) Paragraph (a) which is an Existing Encumbrance set out inabove does not apply to:
(i) Part 1A of any Security listed in Schedule 10 9 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Lawthat Schedule;
(ii) is any cash management, netting or set-off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement pursuant to any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is hedging transaction entered into by a member of the Group for the purpose of:
(A) hedging any risk to which any member of the Bank Group on terms is exposed in its ordinary course of trading; or
(B) its interest rate or currency management operations which are generally no worse than the counterparty’s standard or usual terms and entered into carried out in the ordinary course of business and for non-speculative purposes only, excluding, in each case, any Security under a credit support arrangement in relation to a hedging transaction;
(iv) any lien arising by operation of law and in the relevant member ordinary course of the Bank Group; orbusiness;
(v) which is a retention any Security resulting from the rules and regulations of title arrangement with respect to customer premises equipment any clearing system or stock exchange over shares and/or other securities held in favour of a supplier (that clearing system or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullstock exchange;
(fvi) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject date of this Agreement to which such asset is acquired, ifthe extent that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group; and
(iiB) the Financial Indebtedness principal amount secured thereby is Financial Indebtedness of, has not been increased in contemplation of or is assumed by, since the relevant acquiring acquisition of that asset by a member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(hvii) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifto the extent that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company; and
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company;
(viii) any Security created pursuant to any Finance Document;
(ix) any title transfer or retention of title arrangement entered into by any member of the Group in the ordinary course of business;
(x) pledges of goods, the related documents of title and/or other related documents arising or created in the ordinary course of business as security for indebtedness to a bank or financial institution directly relating to the goods or documents over which that pledge exists;
(xi) any Security over cash or other investments for bank guarantees given in the ordinary course of trading securing liabilities of up to, in aggregate, $100,000,000 (or its equivalent in any other currency or currencies) or to meet any margin requirement in respect of derivative transactions;
(xii) any Security resulting from the rules and regulations of any clearing system or stock exchange over shares and/or other securities held in that clearing system or stock exchange;
(xiii) any Security securing Project Finance Indebtedness;
(xiv) any Security provided in relation to the InterContinental executive top-up scheme securing liabilities of up to, in aggregate, $100,000,000 (or its equivalent in any other currency or currencies);
(xv) any Security replacing any Security permitted under paragraph (i) above or this paragraph (xv) and securing the same indebtedness or obligations whose principal amount does not exceed the maximum principal amount secured, or which could be secured, by the replaced Security when it is replaced;
(xvi) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (xv) above) does not exceed an amount equal to $150,000,000 (or its equivalent in any other currency or currencies); or
(xvii) any other Security created or outstanding with the prior consent of the Majority Lenders.
Appears in 1 contract
Samples: Loan Agreement (Intercontinental Hotels Group PLC /New/)
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security or non disposal undertaking over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by any member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into or permit to subsist any title retention arrangement;
(iv) enter into or permit to subsist any arrangement under which money or the benefit of a bank or other than account may be applied, set-off or made subject to a combination of accounts; or
(v) enter into or permit to subsist any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises lien arising by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group law and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or so long as the debt which it secures is paid when due or contested in good faith by operation of Lawappropriate proceedings and properly provisioned;
(ii) title retention arrangements arising pursuant to a supplier’s usual terms of supply provided that there is entered into no default in payment for any goods so supplied (and no other event is subsisting) which might entitle the supplier to reclaim possession of the relevant goods;
(iii) any Security or non disposal undertaking created pursuant to any Finance Document;
(iv) any Security or non disposal undertaking created in favour of the Lenders in connection with the refinancing of any existing Financial Indebtedness of an Obligor or a member of the Group in similar (or more favourable) terms to the Finance Documents;
(v) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in other than any Hedging Agreement or other contract permitted under Clause 25.12 paragraphs (Limitations on Hedging);
c)(i) to (iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(vabove) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier does not exceed US$35,000,000 (or its Affiliateequivalent in another currency or currencies); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(iivi) at any time before whichever is the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member later of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtednessthe Release Document(s) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group date falling three Months after the Original Execution Datedate of this Agreement, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andExisting Security.
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inThe Borrower shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by it;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables or book debts on recourse or non-recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and effect, in each case arising case, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset (each being “Quasi Security”).
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any netting or set-off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting its debit and credit balances on bank accounts of members of balances;
(ii) any payment or close out netting or set-off arrangement pursuant to any Hedging Agreement entered into by the Bank Group operated on a net balance basisBorrower in accordance with this Agreement;
(iii) arises any Security arising by operation of law in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 business to secure obligations not more than thirty (Limitations on Hedging)30) days overdue;
(iv) is any Security entered into by pursuant to any member Finance Document;
(v) any Security that arises under or pursuant to a Project Document which secures only amounts owing under a Project Document to another party thereto and does not secure Financial Indebtedness;
(vi) any Security arising out of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and retention of title arrangements entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullbusiness;
(fvii) which arises in respect of any judgment, award Security created or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that outstanding with the affected member prior written consent of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilityMajority Lenders;
(gviii) any Security for taxes, assessments, or other governmental charges or levies not yet due or that are not required to be paid under Clause 25.15 (Taxes);
(ix) any pledges or deposits over or affecting cash not in a Project Account to secure the performance of bids, trade contracts and leases (other than Financial Indebtedness), statutory obligations, surety and appeal bonds, performance bonds, and other obligations of a like nature incurred in the ordinary course of business;
(x) any asset acquired by a member Security that arises from judgments that do not constitute an Event of Default under Clause 28.15 (Judgments);
(xi) any easements, rights of way and other similar encumbrances on title to real property that are customarily accepted in the oil and gas industry, none of which interfere with the ordinary conduct of the Bank Group after business of Borrower in any material respect or materially detract from the Original Execution Date and subject value or use of the property to which such asset is acquired, if:they apply;
(ixii) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank GroupPreferential Rights; and
(iixiii) any Security evidenced by the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, filing of precautionary UCC financing statements relating solely to operating leases of personal property entered into in the relevant acquiring member ordinary course of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andbusiness.
Appears in 1 contract
Samples: Borrowing Base Facility Agreement (Cobalt International Energy, Inc.)
Negative Pledge. No Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance over all or any of its present or future revenues or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and ), any Bridge Finance Documents and any Senior Secured Notes Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Negative Pledge. No (a) Except as provided below, no Obligor shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, or Material Subsidiary may create or permit to subsist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(b) Paragraph (a) which is an Existing Encumbrance set out indoes not apply to:
(i) Part 1A Security Interests already existing (or agreed to be created) at the date of this Agreement as set out in Schedule 10 (Cegetel) and Schedule 11 (List of Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; orSecurity Interests);
(ii) Part 1B of Schedule 10 Security Interests created or evidenced by the Security Documents (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance including in respect of such increased amount would be Existing Bank Debt) or as permitted under another paragraph of this Clause 25.2;the VUE Bridge Extension; and
(biii) Security Interests which arises by operation of Law are on or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of over any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted assets not intended to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect the subject of any right of set-off, netting arrangement, title transfer or title retention arrangements a Security Interest under the Security Documents and which:
(iA) arises arise out of title retention provisions in a supplier's standard conditions of supply of goods acquired in the ordinary course of trading and/or business;
(B) constitute liens arising solely by operation of Lawlaw and in the ordinary course of its business;
(iiC) is entered into by are granted over cash or securities in an aggregate amount, or with an aggregate value, not exceeding E300,000,000 (or equivalent in other currencies) at any time and deposited with any bank, financial institution, stock exchange or clearing house with which any member of the Bank Group enters into back-to-back, foreign exchange, swap or derivative transactions and with which cash or securities have had to be deposited in order for such transaction to be entered into;
(D) are granted in respect of any Product Financing;
(E) secure Local Borrowings (or any guarantee given in respect of Local Borrowings which is permitted by this Agreement), the aggregate amount of which does not exceed E300,000,000 (or equivalent in other currencies) at any time (of which Security Interests, no more than an amount of E50,000,000 (or equivalent in other currencies) at any time, in aggregate, may be in the normal form of cash collateral);
(F) are pledges of goods, of the related documents of title and/or of other related documents arising or created in the ordinary course of its banking arrangements business as security only for Financial Indebtedness to a bank or financial institution directly relating to the goods or documents on or over which that pledge exists;
(G) exist at the time of acquisition on or over any assets acquired after the date of this Agreement but only if (1) the Security Interest was not created in contemplation of or in connection with that acquisition and (2) the principal, capital or nominal amount secured by any such Security Interest and outstanding at the time of acquisition may not be increased;
(H) are created on any assets acquired after the date of this Agreement for the sole purpose of financing or re-financing that acquisition and securing a principal, capital or nominal amount not exceeding 100 per cent. of the cost of that acquisition;
(I) in the case of any company which becomes a Material Subsidiary after the date of this Agreement, any Security Interest existing on or over its assets when it becomes a Material Subsidiary, but only if (1) the Security Interest was not created in contemplation of or in connection with it becoming a Material Subsidiary and (2) the principal, capital or nominal amount secured by any such Security Interest and outstanding when the relevant company becomes a Material Subsidiary may not be increased except by reason of any fluctuation in the amount outstanding under, and within the limits and in accordance with the terms of, facilities which exist and are secured by the relevant Security Interest when it becomes a Material Subsidiary;
(J) are given on assets acquired after the date of this Agreement to secure Project Finance Indebtedness provided that the assets which are subject to such Security Interest are assets which are the subject of the applicable project;
(K) are created in respect of borrowings from the French Export Credit Corporation (COFACE) or similar governmental agency incurred on concessional terms by any Obligor or Material Subsidiary made to refinance any amount receivable under any export sales contract provided that each such Security Interest consists only of a pledge of such any Obligor or Material Subsidiary claims under such contract against the foreign buyer and of any Security Interest or guarantee of such claims;
(L) are created by virtue of the operation of any cash pooling arrangements existing at the date of this Agreement or permitted pursuant to this Agreement for any Obligor or Material Subsidiary with their bankers providing for the setting-off or netting of debit and credit balances on bank accounts of those members of the Bank Group operated on a net balance basisGroup;
(iiiM) arises are granted by any Obligor or Material Subsidiary pursuant to applicable law to any pension fund or managers securing the pension obligations of any Obligor or Material Subsidiary;
(N) are created in respect substitution for any Security Interest referred to in this paragraph (b) so long as the principal, capital or nominal amount secured by such replacement Security Interest does not exceed the amount permitted to be secured under this paragraph (b) by the Security Interest which it replaced;
(O) arise out of netting any order of attachment, sequestration, distress or set off arrangements contained in any Hedging Agreement or other contract permitted execution which does not constitute an Event of Default under Clause 25.12 21.9 (Limitations on HedgingCreditors' process / final judgment);
(ivP) are created by the transfer of any Security Interest permitted to exist under this paragraph (b) from one person to another, so long as the principal, capital or nominal amount secured by such Security Interest is entered into not increased;
(Q) are granted by any member of the Bank VUE Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course any of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment assets in respect of which or permitted by or required pursuant to the purchase price has not been paid in fullterms of any VUE Bridge Refinancing, any VUE Incremental Indebtedness or the VUE Bridge Extension (as amended from time to time);
(fR) which arises are granted by Centenary (UK) Limited and its Affiliates in respect of any judgmentUMO Refinancing;
(S) are granted on or over assets or rights to receive assets in connection with the disposal of Sithe Asia with an aggregate value of no more than U.S.$60,000,000 (or equivalent in other currencies) at any time; and
(T) are granted on or over assets with an aggregate value of no more than, award and securing Financial Indebtedness, the amount of which (when aggregated with the amount of other Financial Indebtedness which has the benefit of a Security Interest not permitted under the preceding subparagraphs) does not exceed, U.S.$100,000,000 (or order or equivalent in other currencies) at any tax liability for which an appeal or proceedings for review are being diligently pursued in good faithtime, provided that that: 84
I. subject to paragraphs (II) and (III) below, prior to a Release Condition Date, the affected aggregate principal amount of Financial Indebtedness secured by all Security Interests created or outstanding under this paragraph (b) (excluding paragraphs (b)(i), (b)(ii) and (b)(iii)(J), (Q) and (R) above), when aggregated with the aggregate value of all assets and receivables sold, transferred or otherwise disposed of pursuant to all Restricted Transactions (as defined in Clause 19.13), (excluding for the avoidance of doubt Security Interests over and Restricted Transactions of any shares in or assets of any member of the Bank VUE Group, the Maroc Telecom Group, the Cegetel Group shall have and VTH) does not at any time exceed E500,000,000 (or will establish such reserves as may be required under applicable generally accepted accounting principles equivalent in respect of such judgment, award, order or tax liabilityother currencies);
II. on or after a Release Condition Date (gbut subject to paragraph (III) below), the aggregate principal amount of Financial Indebtedness secured by all Security Interests created or outstanding under paragraphs (a), (b) and (c) of Clause 19.12 (Negative Pledge) (including for the avoidance of doubt, the Existing Cegetel Security and any other Security Interests granted on or over or affecting assets of any asset acquired by a member of the Bank Group after Cegetel Group) (but excluding b(iii)(J) and, prior to a Security Release Condition Date, b(ii)), when aggregated with the Original Execution aggregate value of all assets and receivables sold, transferred or otherwise disposed of pursuant to all Restricted Transactions (as defined in Clause 19.13 (Transactions similar to security), does not at any time exceed 7.5 per cent. of consolidated assets (being the total amount of assets shown in the most recent consolidated balance sheet of the Group). For the avoidance of doubt, following a Release Condition Date and (but subject to paragraph (III) below), no maximum amount shall apply to any Security Interest permitted to be created or to subsist pursuant to paragraphs (b)(iii)(C), (E) and (U); and
III. if, at any time after a Release Condition Date, an Investment Downgrading Date occurs, the provisions of paragraph (I) above shall be automatically reinstated and remain in force in place of the provisions of paragraph (II) above from the Investment Downgrading Date unless and until such time as a Release Condition Date occurs again in which such asset is acquired, ifcase the provisions of paragraph (II) shall apply.
(c) Paragraph (a) does not apply to:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank GroupExisting Cegetel Security; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, Security Interests granted on or is assumed by, the relevant acquiring over assets of any member of the Bank Group, is Cegetel Group securing Financial Indebtedness in an amount, which when aggregated with all assets and receivables sold, transferred or otherwise disposed of by any member of the Cegetel Group pursuant to all Restricted Transactions (as defined in Clause 19.13) other than pursuant to a securitisation do not exceed an amount equal to E500,000,000 (or equivalent in other currencies).
(d) Notwithstanding any other provision in the Finance Documents, no Obligor shall create or permit to subsist any Security Interest on any of the Games IP. Furthermore, no Security Interest shall be granted over the percentage of shares in Centenary Holding N.V. Centenary Holding Limited or any other Excluded Music Group Entity over which shares no Obligor can create or permit to subsist any Security Interest in favour of the Finance Parties as a result of such Excluded Music Group Entity's being or becoming a Foreign Subsidiary or becoming held (directly or indirectly) by Universal Studios Holding I Corp.
(e) Notwithstanding any other provision in the Finance Documents, no Obligor shall create or permit to subsist any Security Interest in respect of the High Yield Notes.
(f) The Company will not create or permit to subsist (or agree to create or permit to subsist) any new security from any other member of the Group (other than that granted under the Security Documents at all times falls within paragraph the date of this Agreement) in favour of the Existing Bank Debt unless any such new security effectively secures the Secured Obligations under this Agreement on a pari passu basis with the Existing Bank Debt.
(g) or (k) Following the Maroc Telecom Date, as soon as reasonably practicable and in any event of Clause 25.4 (Financial Indebtedness) within 45 calendar days thereof, the Company and the amount Facility Agent (on the instructions of Financial Indebtedness so secured is not increased at any time;the Majority Lenders) shall negotiate in good faith with a view to agreeing the aggregate value of assets of the Maroc Telecom Group over which a Security Interests may be permitted to be created or exist under this Agreement.
(h) As soon as practicable following notice by the Kingdom of Maroc of its intention to exercise the put, the Company shall (unless the Company intends to finance any such acquisition by a Maroc Telecom Excluded Financing) use its reasonable endeavours to release any Security Interest over all the shares it holds (directly or affecting any asset of any company which becomes a member indirectly) in Maroc Telecom (other than the Acquired Shares) in favour of the Bank Group after Kingdom of Maroc and to obtain the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member consent of the Bank GroupKingdom of Maroc to grant security over all the shares it holds (directly or indirectly) in Maroc Telecom (including, if:for the avoidance of doubt, the Maroc Telecom Acquired Shares) in favour of the Lenders and the Existing Lenders on a pari passu basis.
(i) such Encumbrance was not created in contemplation of Where the Company finances the acquisition of such company; andthe Maroc Telecom Acquired Shares by a Maroc Telecom Excluded Financing, the Company will not create or permit to subsist (or agree to create or permit to subsist) any Security Interest over any of the shares it holds (directly or indirectly) in Maroc Telecom (other than any shares (held directly or indirectly) by the Company in Maroc Telecom permitted to be pledged in favour of the Lenders under the Maroc Telecom Excluded Financing).
Appears in 1 contract
Negative Pledge. No Obligor shall (and a) For the Company shall procure that purpose of this Subclause, Quasi-Security Interest means an arrangement or transaction described in paragraph (c) below.
(b) Except as provided below, no member of the Bank Restricted Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ac) which is an Existing Encumbrance set out inNo member of the Restricted Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateRestricted Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;an asset.
(d) arising from any Finance Leases, sale Paragraphs (b) and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(ec) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises any Security Interest or Quasi-Security Interest listed in Schedule 5 (Existing Security) except to the ordinary course of trading and/or extent the principal amount secured by operation of Lawthat Security Interest exceeds the amount stated in that Schedule;
(ii) any Security Interest or Quasi-Security Interest created solely for the purpose of securing the refinancing of any indebtedness secured by any Security Interest or Quasi-Security Interest listed in Schedule 5 (Existing Security) where the principal amount secured has not been increased above the amount stated in that Schedule which is to be refinanced;
(iii) any Security Interest or Quasi-Security Interest comprising a netting, set-off or cash-pooling arrangement entered into by any a member of the Bank Restricted Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)balances;
(iv) is any payment or close out netting or set-off arrangement pursuant to any hedging transaction entered into by any a member of the Bank Restricted Group but excluding any Security Interest or Quasi-Security Interest under a credit support arrangement;
(v) any lien arising by operation of law and in the ordinary course of business;
(vi) any Security Interest or Quasi-Security Interest on terms which are generally no worse than an asset, or an asset of any person, acquired by a member of the counterpartyRestricted Group after the date of this Agreement but only for the period of 6 months from the date of acquisition and to the extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(vii) any Security Interest or Quasi-Security Interest arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Restricted Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Restricted Group;
(viii) any Security Interest or Quasi-Security Interest over goods or documents of title arising in the ordinary course of letter of credit transactions entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fulltrade;
(fix) which arises in respect of any judgment, award Security Interest or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, Quasi-Security Interest provided that with the affected member prior consent of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank GroupMajority Lenders; and
(iix) the Financial Indebtedness secured thereby is Financial Indebtedness of, any Security Interest or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and Quasi-Security Interest securing indebtedness the amount of Financial Indebtedness so secured is which (when aggregated with the amount of any other indebtedness which has the benefit of a Security Interest not increased allowed under the preceding sub-paragraphs) does not exceed RMB500,000,000 or its equivalent at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and the Company shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) enter into or allow to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iii) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) No Obligor shall (and the Company shall ensure that no other member of the Group will) sell, transfer or otherwise dispose of any of its receivables on recourse terms.
(d) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law Security comprising a netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any Security over goods and documents of members title arising in the ordinary course of trading or retention of title arrangements and rights of set-off arising in the ordinary course of trading with suppliers of goods to any member of the Bank Group operated on a net balance basisGroup;
(iii) arises any Security existing and disclosed in respect writing to the Facility Agent prior to the date of netting this Agreement provided that the amount thereby secured, as so disclosed, is not thereafter increased or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)its maturity extended;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquireddate of this Agreement, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of that acquisition; LD885224/26
(B) the acquisition of such asset by a member of amount thereby secured has not been increased in contemplation of, or since the Bank Groupdate of, that acquisition; and
(iiC) unless the Financial Indebtedness secured thereby Security is Financial Indebtedness of, in favour of a government or is assumed by, the relevant acquiring member utility supplier and was required to be given as a condition of the Bank Groupperson who created the Security being permitted to carry on business or being provided with utility supplies, it is Financial Indebtedness which at all times falls removed or discharged within paragraph (g) or (k) six months of Clause 25.4 (Financial Indebtedness) and the amount date of Financial Indebtedness so secured is not increased at any timeacquisition;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, ifprovided that:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the amount thereby secured has not been increased in contemplation of, or since the date of, that acquisition; and
(C) unless the Security is in favour of a government or utility supplier and was required to be given as a condition of the person who created the Security being permitted to carry on business or being provided with utility supplies, it is removed or discharged within six months of that company becoming a member of the Group;
(vi) any Security created over any assets of, shares in, or debts or other obligations of a Project Company securing Project Finance Debt of that Project Company;
(vii) any Security in the form of cross charges over joint venture related assets granted to other joint venturers and/or the manager of the joint venture to secure obligations owed to any one or more of the other joint venturers and/or the manager under the joint venture or related agreement;
(viii) any Security securing indebtedness the principal amount of which (when aggregated with (A) the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group, other than any permitted under paragraphs (i) to (vii) above and (B) any other Financial Indebtedness permitted under Clause 23.6(b)(vi)), does not exceed 5 per cent. of Total Assets at that time (or its equivalent in any other currency or currencies); or
(ix) any Security approved by the Majority Lenders.
Appears in 1 contract
Negative Pledge. 22.4.1 No Obligor shall (and the Company Obligors shall procure ensure that no other member of the Bank Lesaka Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets assets.
22.4.2 No Obligor shall (and the Obligors shall ensure that no other than an Encumbrance:member of the Lesaka Group will):
(a) which is sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Existing Encumbrance set out in:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days Obligor or any other member of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2Lesaka Group;
(b) which arises by operation of Law sell, transfer or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty otherwise dispose of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Groupits receivables on recourse terms;
(c) which is created pursuant enter into or permit to subsist any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documentstitle retention arrangement;
(d) arising from enter into or permit to subsist any Finance Leasesarrangement under which money or the benefit of a bank or other account may be applied, sale and leaseback arrangements set-off or Vendor Financing Arrangements permitted made subject to be incurred pursuant to Clause 25.4 (Financial Indebtedness);a combination of accounts; or
(e) which arises enter into or permit to subsist any other preferential arrangement having a similar effect, in respect circumstances where the arrangement or transaction is entered into primarily as a method of any right raising Financial Indebtedness or of set-off, netting arrangement, title transfer or title retention arrangements which:financing the acquisition of an asset.
22.4.3 Clauses 22.4.1 and 22.4.2 do not apply to the following Security (each a Permitted Encumbrance):
(ia) arises any Security given or purported to be given as Transaction Security;
(b) any Security referred to in Schedule 10 (Disclosure Schedule) given as at the Signature Date;
(c) any lien arising by operation of law and in the ordinary course of trading and/or trading, and not as a result of any default or omission by operation any member of Lawthe Lesaka Group;
(iid) is any netting or set-off arrangement entered into by any member of the Group with an Approved Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances, but only if the arrangement does not permit credit balances on bank accounts of Obligors to be netted with debit balances of members of the Bank Lesaka Group operated on a net balance basiswhich are not Obligors;
(iiie) arises in respect any netting of payments under a Permitted Treasury Transaction (including netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour close-out of a supplier (or its AffiliatePermitted Treasury Transaction); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Lesaka Group after the Original Execution Signature Date and subject to which such asset is acquired, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Lesaka Group;
(ii) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Lesaka Group; and
(iiiii) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph date of acquisition of such asset;
(g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) Security over or affecting any asset of any company which becomes a member of the Bank Lesaka Group after the Original Execution Date, Signature Date where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Lesaka Group, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(ii) the principal amount secured has not been increased in contemplation of or since the acquisition of that company; and
(iii) the Security is removed or discharged within 3 months of the date of that company becoming a member of the Lesaka Group;
(h) any Security arising under:
(i) a finance or capital lease; or
Appears in 1 contract
Samples: Senior Facility Agreement (Lesaka Technologies Inc)
Negative Pledge. No Obligor (a) Neither the Borrower nor any of its Material Subsidiaries shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNeither the Borrower nor any of its Material Subsidiaries shall:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its receivables on recourse terms;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days enter into any arrangement under which money or the benefit of the Merger Closing Datea bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichabove do not apply to:
(i) arises any Security listed in Schedule 6 (Existing Security) and any renewals and extensions thereof except to the ordinary course of trading and/or extent the principal amount secured by operation of Lawthat Security exceeds the amount stated in that Schedule;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Borrower or its Subsidiaries in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any Security arising by operation of law and in respect the ordinary course of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)trading;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Group Borrower or its Subsidiaries after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member the Borrower or its Subsidiaries;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by the Bank GroupBorrower or its Subsidiaries; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group Subsidiary after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank GroupSubsidiary, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within 3 months of that company becoming a Subsidiary;
(vi) any Security entered into pursuant to any Finance Document;
(vii) easements, rights of way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower or its Subsidiaries;
(viii) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Borrower or its Subsidiaries in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by the Borrower or any of its Subsidiaries;
(ix) any Security on the proceeds of assets, which assets were subject to Security permitted hereunder or on assets acquired with such proceeds as a replacement of such former assets;
(x) any Security on Receivables (as defined in the Parent Guaranty) and Receivables-Related Assets (as defined in the Parent Guaranty) in connection with any Permitted Receivables Purchase Facility (as defined in the Parent Guaranty); or
(xi) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Group other than any permitted under paragraphs (i) to (vi) above) does not exceed $100,000,000 (or its equivalent in another currency or currencies). All items referred to in this Clause 20.3(c) are, together, the “Permitted Security”.
Appears in 1 contract
Samples: Term Facility Agreement (Cadence Design Systems Inc)
Negative Pledge. No Obligor shall (will, and the Company shall each Obligor will procure that no other member of the Bank Group shall), without the prior written consent of an Instructing Groupwill, create or permit to subsist any Encumbrance over all on the whole or any part of its respective present or future revenues business, assets or assets other than an Encumbrance:
(a) which is an Existing Encumbrance set out in:undertaking, except for the following:-
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of Encumbrances constituted or evidenced by the Merger Closing Date; orSecurity Documents;
(ii) Part 1B Encumbrances expressly permitted by a Waiver Letter, provided that, except to the extent permitted by any of Schedule 10 (Existing Encumbrances) provided that the following exceptions, the principal amount of the indebtedness secured thereby may by such Encumbrances shall not at any time be increased unless any Encumbrance in respect of such increased beyond the amount would be so permitted, save as permitted under another paragraph of this Clause 25.2by a further Waiver Letter;
(biii) which arises Encumbrances arising by operation of Law law (or by agreement to the same effect) in the ordinary course of business and not as a contract having a similar effect result of any default or under an escrow arrangement required by a trading counterparty omission on the part of any member of the Bank Group Group, including without limitation (but subject as aforesaid) (A) any rights of set-off with respect to demand or time deposits with financial institutions and bankers' liens with respect to property held by financial institutions, save in each case arising where such arrangements are deliberately established for the purpose of affording security to the bank or entered into the ordinary course of business of the relevant member of the Bank Groupfinancial institution concerned and (B) Encumbrances with respect to Taxes;
(civ) which is created pursuant Encumbrances over goods and documents of title to any of the Finance Documents goods (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(drelated insurances) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation letter of Lawcredit transactions entered into in the ordinary course of trade;
(iiv) is entered into Encumbrances over assets (other than the Shares) acquired by members of the Group and existing at the date of their acquisition but not created in contemplation of their acquisition, provided that (A) 58 the principal amount secured by any member such Encumbrances shall not be increased beyond the amount secured thereby at the date of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit such acquisition and (B) such Encumbrances are released and discharged within six months after such acquisition;
(vi) Encumbrances over credit balances on bank accounts of members of the Bank Group operated created in order to facilitate the operation of such bank accounts and other bank accounts of such members of the Group with the same bank on a net balance basisbasis with credit balances and debit balances on the various accounts being netted off for interest purposes;
(iiivii) arises any Encumbrance created under or in respect connection with or arising out of netting any pooling settlement, arrangements or set off agreements (including, but without limitation, the Pooling and Settlement Agreement) of the electricity generation, supply and distribution industry or any transactions or arrangements contained entered into in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)a form usual in such industry in connection with the management of risks relating thereto;
(ivviii) is entered into any Encumbrance created by a Project Finance Subsidiary over an asset and/or the income, cash flow or other proceeds deriving from an asset owned by it which secures only Project Finance Indebtedness of that Project Finance Subsidiary incurred for the purpose of financing the acquisition, development, ownership and operation of that asset;
(ix) any member of Encumbrance created over (and giving the Bank Group on terms which are generally no worse than creditor recourse only to) the counterparty’s standard or usual terms and entered into shares in the ordinary course capital of business a Project Finance Subsidiary securing only Project Finance Indebtedness of the relevant member of the Bank Groupthat Project Finance Subsidiary; or
(vx) which is a retention of title arrangement with respect Encumbrances (other than over the Shares) not otherwise permitted pursuant to customer premises equipment paragraphs (i)-(ix) (inclusive) above together securing indebtedness in favour of a supplier an aggregate principal amount not exceeding 50,000,000 pounds (or its Affiliateequivalent in other currencies); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Negative Pledge. 20.3.1 No Obligor Borrower shall (and the Company shall procure ensure that no other member of the Bank Restricted Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present or future revenues or assets other than an Encumbranceassets.
20.3.2 Sub-clause 20.3.1 above does not apply to:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of any Security disclosed in the Original Financial Statements or listed in Schedule 10 6 (Existing EncumbrancesSecurity) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2that Schedule;
(b) which arises by operation of Law any netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Restricted Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of its banking arrangements; any cash management arrangement (including hedging policies) made in accordance with sound commercial practices; any hedging arrangements made in accordance with sound commercial practices (excluding any Security, other than netting arrangements, granted or arising under or in connection with such arrangements); any set-off rights, liens or similar rights granted or arising under the general terms of business of any financial or credit institution;
(c) any lien arising by operation of law and in the relevant member ordinary course of trading;
(d) any lien arising under Section 430(k) of the Bank Group; or
(v) which is a retention Code or Title IV of title arrangement ERISA, in each case, with respect to customer premises equipment an Employee Plan and which would not reasonably be expected to result in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullMaterial Adverse Effect;
(fe) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security over or affecting any asset acquired by a member of the Bank Restricted Group after the Original Execution Signing Date and subject to which such asset is acquired, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Restricted Group;
(ii) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Restricted Group; and
(iiiii) the Security is removed or discharged within nine (9) Months of the date of acquisition of such asset if not otherwise permitted under this Clause 20.3;
(f) any Security created over an asset to secure finance for the acquisition price or costs of maintenance or improvement of such asset (any such price or cost, the “Asset Costs”) (i) to the extent the realisation value of the subject matter of such Security does not, at the time of creation of the Security, exceed in amount the Financial Indebtedness secured thereby is by such Security, and (ii) provided that the proceeds of the relevant financing underlying the said Financial Indebtedness of, are applied solely towards the discharge or is assumed by, the relevant acquiring member payment of the Bank Group, is Financial Indebtedness which at all times falls within paragraph Asset Costs;
(g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) Security over or affecting any asset of any company which becomes a member of the Bank Restricted Group or is merged into a member of the Restricted Group after the Original Execution Signing Date, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Restricted Group, if:
(i) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(ii) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(iii) the Security is removed or discharged within nine (9) Months of that company becoming a member of the Restricted Group if not otherwise permitted under this Clause 20.3;
(h) any Security created in favour of a claimant or defendant in any action of the court or tribunal before whom such action is brought as security for costs or expenses where any member of the Restricted Group is actively prosecuting or defending such action by appropriate proceedings in the bona fide interests of the Restricted Group;
(i) any Security created pursuant to any order of attachment, distraint, garnishee order, arrestment, adjudication or injunction or interdict restraining disposal of assets or similar legal process arising in connection with court proceedings, provided the same are not, in the opinion of the Majority Lenders, adverse to their interests;
(j) any Security for taxes or assessments that are being actively contested in good faith by appropriate proceedings and for which adequate provisions are being maintained to the extent required by applicable principles;
(k) for the avoidance of doubt, any transfer of receivables or other rights under or in connection with a securitisation programme of the Company or any other member of the Restricted Group;
(l) any Security created pursuant to any sale, transfer or other disposal of any of the assets of the Company or any other member of the Restricted Group on terms whereby such assets are to be leased to or re-acquired by the relevant Borrower or member of the Restricted Group;
(m) any Security (a “Substitute Security”) which replaces any other Security permitted pursuant to this Clause and which secures an amount not exceeding the principal amount secured by such permitted Security at the time it is replaced together with any interest accruing on such amounts from the date such Substitute Security is created or arises and any fees or expenses incurred in relation thereto provided that the existing Security to be replaced is released and all amounts secured thereby paid or otherwise discharged in full at or prior to the time of such Substitute Security being created or arising; or
(n) any Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security given by any member of the Restricted Group to the extent not permitted under paragraphs (a) to (j) above) does not exceed seven point five percent. (7.5%) of the Company’s Consolidated Net Worth (or its equivalent in another currency or currencies) from time to time.
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(b) Paragraph (a) which is an Existing Encumbrance set out indoes not apply to:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of any Security Interest constituted by the Merger Closing Date; orSecurity Documents;
(ii) Part 1B of any Security Interest listed in Schedule 10 6 to the Senior Credit Facilities except to the extent:
(Existing EncumbrancesA) provided that the principal amount secured thereby may not be increased unless any Encumbrance by that Security Interest exceeds the amount stated in respect of such increased that Schedule or, if lower, the principal amount would be permitted under another paragraph secured by that Security Interest at the date of this Clause 25.2;Agreement; and
(bB) which arises the principal amount of Financial Indebtedness secured by operation of Law all Security Interests listed in Schedule 6 to the Senior Credit Facilities exceeds (pound)10 million (or its equivalent) plus any Financial Indebtedness to the extent covered by a contract having Letter of Credit under the Senior Credit Facilities or a similar effect or letter of credit issued under an escrow arrangement required by a trading counterparty of any member of Ancillary Facility (as defined in the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial IndebtednessSenior Credit Facilities);
(eiii) which arises in respect of any right of Security Interest comprising a netting or set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off arrangement entered into by a member of the Group in the ordinary course of trading and/or by operation of Law;
its or the Group's financing arrangements (iiincluding derivative transactions) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basis;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)balances;
(iv) is entered into any lien arising by any member operation of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Grouptrading; or--------------------------------------------------------------------------------
(v) which is a retention any Security Interest arising pursuant to the general banking terms and conditions of title arrangement with respect to customer premises equipment any bank holding an account of any member of the Group in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullGermany;
(fvi) which arises in respect any Security Interest on an asset, or an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only for the period of 6 months from the date of acquisition and subject to which such asset is acquiredthe extent that the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, if:or since, the acquisition;
(ivii) such Encumbrance was not created in contemplation of the acquisition of such any Security Interest over any asset which has been or is acquired by a member of the Bank Group; andGroup where the Security Interest is security for, or for indebtedness incurred to finance, the acquisition price of that asset;
(iiviii) the Financial Indebtedness secured thereby is Financial Indebtedness ofany Security Interest over goods, or is assumed by, the relevant acquiring documents of title to goods and related documents and insurances and their proceeds to secure liabilities of any member of the Bank GroupGroup in respect of a letter of credit or other similar instrument issued for all or part of the purchase price and costs of shipment, is Financial Indebtedness which at all times falls within paragraph (g) or (k) insurance and storage of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at goods acquired by any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after in the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member ordinary course of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andtrading;
Appears in 1 contract
Samples: Bridge Loan Agreement (Enodis PLC)
Negative Pledge. No Obligor (a) The Borrowers shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all the Vessels or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inThe Guarantor shall not create or permit to subsist any Security over the Shares.
(c) The Borrowers shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by any Obligor;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;an asset.
(d) arising from Paragraphs (a) and (b) above do not apply to any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichSecurity listed below:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Obligor in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances balances, hereunder any rights of pledge and set-off in relation to a cash pool arrangement approved by the Agent (on bank accounts of members behalf of the Bank Group operated on a net balance basisFinance Parties and the Hedging Banks);
(ii) any lien (including but not limited to maritime liens defined as such pursuant to applicable law) arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
Security entered into pursuant to any Finance Document; (iv) is any cash collateral from an Obligor to any Hedging Bank as security (for its own account) for any swap transaction to be entered into between that Hedging Bank and an Obligor, and any cash collateral so placed by any member an Obligor with a Hedging Bank shall be released, discharged and (if required) deregistered immediately after evidence of registration of the Bank Group Mortgages on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business all of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullVessels;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Term Loan Facilities Agreement (DHT Holdings, Inc.)
Negative Pledge. No Obligor (a) The Borrower shall not (and the Company Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets. For the purposes of this Article 7.02, the term Security shall also include any arrangement or future revenues transaction on assets or receivables or money (such as the sale, transfer or other disposal of assets on terms whereby they are or may be leased to or re-acquired by the Borrower or any other than member of the Group, the sale, transfer or otherwise dispose of any receivables on recourse terms or any arrangement under which money or the benefit of a bank account or other account may be applied or set-off or any preferential arrangement having a similar effect) in circumstances where the arrangement or transaction is entered into primarily as a method of raising credit or of financing the acquisition of an Encumbrance:asset.
(b) Paragraph (a) which is an Existing Encumbrance set out inabove does not apply to any Security, listed below:
(i) Part 1A of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiiii) arises in respect of any payment or close out netting or set set-off arrangements contained in arrangement pursuant to any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is hedging transaction entered into by a member of the Group for the purpose of:
(A) hedging any risk to which any member of the Bank Group on terms is exposed in its ordinary course of trading; or
(B) its interest rate or currency management operations which are generally no worse than the counterparty’s standard or usual terms and entered into carried out in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is and for non-speculative purposes only, excluding, in each case, any Security under a retention of title credit support arrangement with respect in relation to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullhedging transaction;
(fiii) which arises any lien arising by operation of law and in respect the ordinary course of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liabilitytrading;
(giv) any Security over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Contract if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby Security is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three (3) months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Datedate of this Contract, where such Encumbrance the Security is created prior to the date on which such that company becomes a member of the Bank Group, if:
(iA) such Encumbrance the Security was not created in contemplation of the acquisition of such that company;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and
(C) the Security is removed or discharged within three (3) months of that company becoming a member of the Group;
(vi) any Security entered into pursuant to this Contract;
(vii) any Security arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading and on the supplier’s standard or usual terms and not arising as a result of any default or omission by any member of the Group; or
(viii) any Security listed in Schedule E (Existing Security) except to the extent the principal amount secured by that Security exceeds the amount stated in that Schedule.
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that no member Each of the Bank Group shall), without the prior written consent of an Instructing Group, Obligors undertakes not to create or permit to subsist subsist, and (in case of the Company only) to procure that no Material Subsidiary shall create or permit to subsist, any Encumbrance Security over all or any of its present or future revenues or assets as security for Financial Indebtedness of any person other than an Encumbrancethan:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A any Security arising in the ordinary course of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days business or on the basis of the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2customary general business conditions;
(b) which arises any Security arising solely by operation of Law law (or by a contract having a similar effect an agreement evidencing the same);
(c) any Security created or under an escrow arrangement required by a trading counterparty of any member permitted to subsist with the prior written consent of the Bank Group and Majority Lenders;
(d) any Security arising in each case arising connection with any netting or set off arrangement entered into in the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts or in connection with customary framework/master agreements relating to derivatives transactions made in the ordinary course of members of the Bank Group operated on a net balance basisbusiness;
(iiie) arises any Security existing over newly acquired assets at the time of their acquisition not created in respect contemplation of netting such acquisition or set off arrangements contained in any Hedging Agreement or other contract permitted under over assets of an entity which becomes subject to the provisions of this Clause 25.12 27.1 (Limitations on Hedging)Negative Pledge) after the date of this Agreement;
(ivf) is entered into by any member Security existing or created in order to comply with section 8a of the German Partial Retirement Act (Altersteilzeitgesetz) or pursuant to section 7e of the German Social Security Code IV (Sozialgesetzbuch IV) or granted to a pension fund (or the respective pension trustee) or contractual trust arrangement initiated by the Group to secure contribution obligations towards such pension fund or contractual trust arrangement;
(g) any Security provided under customary export finance or other subsidised loans or to a public financial institution (including the European Investment Bank Group on terms which are generally no worse than and the counterpartyEuropean Bank for Reconstruction and Development) in accordance with such institution’s standard or usual terms and published lending policy;
(h) any Security arising in connection with the issue of asset-backed securities entered into in the ordinary course of business business;
(i) any Security arising in connection with any arrangement made within the ordinary course of treasury activities of the relevant Group by which a member of the Bank Group disposes of any marketable securities on terms whereby they are or may be re-acquired by that member of the Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(fj) which arises in respect of relation to a Project Company, Security on the assets and/or the business constituted by that project and/or the shares in any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member Project Company and/or over loans made to it by members of the Bank Group shall have or will establish such reserves as may be required and/or claims under applicable generally accepted accounting principles in respect insurance contracts insuring the assets of such judgment, award, order or tax liabilitythe business constituted by that project;
(gk) over or affecting any asset acquired in relation to a project finance transaction (entered into by a member of the Bank Group after the Original Execution Date and subject other than Linde) in relation to which such asset the borrower is acquirednot a Project Company any Security over project assets (including ancillary rights and any proceeds therefrom), if:
(i) such Encumbrance was not created in contemplation the acquisition, construction or development of which is financed with debt incurred for the acquisition purpose of such asset project finance transaction where the only recourse is to such assets of such borrower (it being understood that a completion guarantee granted by a another member of the Bank GroupGroup does not constitute recourse for the purpose of the preceding sentence);
(l) any Security existing or created over cash accounts held with banks in connection with the local funding needs of foreign members of the Group (back-to-back);
(m) any Security over claims under loans made by Linde Finance B.V. to any other member of the Group as security for the repayment of notes, the proceeds of the issuance of which were used by Linde Finance B.V. to make the respective loans;
(n) any Security over cash deposits granted in favour of the trustee for the holder of Loan Notes;
(o) any Security over cash deposits or cash equivalents using funds drawn hereunder and used in connection with the defeasance of Existing Financial Indebtedness provided that the aggregate amount of the Financial Indebtedness secured hereunder does not exceed EUR 500,000,000 (or its equivalent);
(p) in relation to Financial Indebtedness incurred locally for local financing needs if it is customary to provide Security in respect of such Financial Indebtedness provided that the aggregate amount of Financial Indebtedness secured hereunder does not exceed EUR 225,000,000 (or its equivalent);
(q) any other Security, provided that the aggregate amount of all claims which are at any time outstanding and secured by Security created or existing in reliance on this paragraph (q) (converted into EUR in case a claim is not denominated in EUR) does not exceed EUR 525,000,000 (or its equivalent); and
(iir) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member any Security created in favour of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and Finance Parties under the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinance Documents.
Appears in 1 contract
Samples: Facility Agreement (Linde PLC)
Negative Pledge. No Obligor (a) The Borrowers shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all the Vessels or any of its present or future revenues or assets other than an Encumbrance:their assets.
(ab) which is an Existing Encumbrance set out inNo Borrower shall:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by any Obligor;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant Paragraphs (a) and (b) above do not apply to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichSecurity listed below:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Obligor in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances balances, hereunder any rights of pledge and set-off in relation to a cash pool arrangement approved by the Agent (on bank accounts of members behalf of the Bank Group operated on a net balance basisFinance Parties and the Hedging Banks);
(ii) any lien arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)Security entered into pursuant to any Finance Document;
(iv) is any cash collateral from an Obligor to any Hedging Bank as security (for its own account) for any swap transaction to be entered into to between that Hedging Bank and an Obligor, and any cash collateral so placed by any member an Obligor with a Hedging Bank shall be released, discharged and (if required) deregistered immediately after evidence of registration of the Bank Group Mortgages on terms which are generally no worse than all of the counterparty’s standard Vessels;
(v) arising under any retention of title, hire purchase or usual terms and entered into conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a Borrower in the ordinary course of business trading on arm's length terms and on the supplier's standard and usual terms;
(vi) Security consented to in writing by the Agent (on behalf of the relevant member of the Bank GroupFinance Parties); or
(vvii) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier any Security or quasi-Security over bank accounts arising under the general terms and conditions (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(falgemene bankvoorwaarden) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
Dutch Bankers' Association (g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andNederlandse Vereniging xxx Xxxxxx).
Appears in 1 contract
Negative Pledge. (a) No Obligor shall (and the Company Original Borrower shall procure ensure that no other member of the Bank Group shall), without the prior written consent of an Instructing Group, will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) Without limiting paragraph (a), no Obligor shall (and the Original Borrower shall ensure that no other member of the Group will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by a Transaction Party, any other than member of the Group or its Affiliate;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter any title retention arrangement;
(iv) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts or not repayable in certain circumstances; or
(v) enter into any other preferential arrangement having a similar effect, in the case of paragraphs (iii) and (iv) in circumstances where the arrangement or transaction is entered into primarily as a method of raising or securing Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraphs (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A of Schedule 10 (any Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days of Security and New Security except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of LawSchedule 8;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group on ordinary commercial terms in the normal ordinary course of its the Group’s transactional banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iii) arises any lien arising by operation of law and in respect the ordinary course of netting trading so long as the debt it secures is paid when due or set off arrangements contained contested in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)good faith and appropriately provisioned;
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard Security, arrangement or usual terms and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) transaction over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(iA) such Encumbrance it was not created in contemplation of the acquisition of such that asset by a member of the Bank Group;
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and
(iiC) the Financial Indebtedness secured thereby it is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within 3 months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(hv) any Security, arrangement or transaction over or affecting any asset of any company entity which becomes a member of the Bank Group after the Original Execution Datedate of this Agreement, where such Encumbrance the Security is created prior to the date on which such company that entity becomes a member of the Bank Group, if:
(iA) such Encumbrance it was not created in contemplation of the acquisition of such companythat entity;
(B) the principal amount secured has not increased in contemplation of or since the acquisition of that entity; and
(C) it is removed or discharged within 3 months of that entity becoming a member of the Group;
(vi) any title retention arrangement entered into by any member of the Group in the ordinary course of trading on the supplier’s usual terms of sale (or on terms more favourable to the members of the Group) so long as the debt it secures is paid when due or contested in good faith and sufficient reserves of liquid assets have been set aside to pay the debt if the contest is unsuccessful;
(vii) any cross charge between members of a joint venture over joint venture assets securing obligations to contribute to that joint venture or to repay other joint venturers who contribute to the joint venture in default of the chargor doing so; or
(viii) any Security, arrangement or transaction securing the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease, provided such liabilities do not exceed $10,000,000 in aggregate (or its equivalent in another currency or currencies); and
(ix) any Security, arrangement or transaction securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security, or any such arrangement or transaction other than any permitted under paragraphs (i) to (vii) above) does not exceed $10,000,000 in aggregate (or its equivalent in another currency or currencies).
Appears in 1 contract
Negative Pledge. No Obligor shall (and the Company shall procure that a) Except as provided below, no member of the Bank Group shall), without the prior written consent of an Instructing Group, may create or permit allow to subsist exist any Encumbrance over all or Security Interest on any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inNo member of the Group may:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 (Existing Encumbrances) provided that such Encumbrance any of its assets on terms where it is released within 10 Business Days or may be leased to or re-acquired or acquired by a member of the Merger Closing DateGroup or any of its related entities;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect or under an escrow arrangement required by a trading counterparty of any member of effect, in circumstances where the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;an asset.
(c) which is created pursuant to any of the Finance Documents Paragraphs (including, for the purposes of securing any Alternative Baseball Financinga) and any Bridge Finance Documents;
(db) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichdo not apply to:
(i) arises any Security Interest comprising a netting or set-off arrangement entered into by a member of the Group in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances;
(ii) any lien arising by operation of members law and in the ordinary course of the Bank Group operated on a net balance basisbusiness;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement Security Interests for taxes or other contract permitted under Clause 25.12 (Limitations on Hedging)governmental charges not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and, in each case, for which it maintains adequate reserves in conformity with generally accepted accounting principles in the relevant jurisdiction;
(iv) is entered into by Security Interests that constitute purchase money security interests on any member property securing debt incurred for the purpose of financing all or any part of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course cost of business acquiring such property, provided that any such Security Interest attaches to such property within 60 days of the relevant member of acquisition thereof and attaches solely to the Bank Group; orproperty so acquired;
(v) which is a retention of title arrangement with respect to customer premises equipment attachments, appeal bonds, judgments and other similar Security Interests, for sums not exceeding in favour of a supplier aggregate US$5,000,000 (or its Affiliate); equivalent) arising in connection with any court proceedings, provided that the title execution or other enforcement of such Security Interests is only retained to individual items of customer premises equipment effectively stayed and the claims secured thereby are being actively contested in respect of which the purchase price has not been paid in fullgood faith and by appropriate proceedings;
(fvi) which arises in respect any Security Interest on an asset, or an asset of any judgmentperson, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date date of this Agreement but only provided that (A) the aggregate amount covered by any such Security Interest does not exceed US$10,000,000 (or its equivalent) at any time; (B) such Security Interest is only in place for the period of six months from the date of acquisition; and subject (C) the principal amount secured by that Security Interest has not been incurred or increased in contemplation of, or since, the acquisition;
(vii) easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens not interfering in any material respect with the ordinary conduct of the business of any member of the Group;
(viii) any Security Interest entered into pursuant to which a Finance Document;
(ix) any Security Interest constituted by the Cession in Security Agreement;
(x) any Security Interest in favour of CASS arising under the CASS Agreement;
(xi) any Security Interest under the escrow agreement dated 7 March 2006 by and between the Company, Endeavour Capital Fund III, L.P., as representative of the shareholders and option holders of Market Industries, Ltd., and U.S. Bank National Association, a national banking association;
(xii) any Security Interest arising as a result of a Capital Lease permitted to subsist under Subclause 25.8 (Financial Indebtedness);
(xiii) any Security Interest created by an Obligor under the Global Facility in favour of another Obligor under the Global Facility (provided that no such asset is acquiredSecurity Interest may be granted in favour of Pyramid Freight, ifSouth Africa by an Obligor under the Global Facility) or by an Obligor under the South African Facility to another Obligor under the South African Facility (provided that no such Security Interest may be granted in favour of Pyramid Freight BVI by an Obligor under the South African Facility); or
(xiv) any Security Interest listed or referred to in the column headed "Security or guarantee supporting the facility" of Schedule 10 (Existing Indebtedness) provided that:
(iA) such Encumbrance was not created all Security Interests securing facilities or guarantees listed in contemplation Part 1 of the acquisition of such asset by a member of the Bank Group; and
Schedule 10 (ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Existing Indebtedness) and are irrevocably released on or before the amount of Financial Indebtedness so secured is not increased at any timefirst Utilisation Date;
(hB) over or affecting any asset all guarantees listed in Part 2 of any company which becomes Schedule 10 (Existing Indebtedness) are (I) irrevocably released by no later than the date falling three months from the date of this Agreement and (II) covered by a member Letter of Credit issued under this Agreement in respect of the Bank Group after full amount of such guarantee from the Original Execution Date, where such Encumbrance is created prior first Utilisation Date to the date on which such company becomes a member of the Bank Group, if:they are released; and
(iC) such Encumbrance was not created all Security Interests securing facilities or guarantees listed in contemplation Part 3 of Schedule 10 (Existing Indebtedness) are irrevocably released by no later than the acquisition date falling three months from the date of such company; andthis Agreement.
Appears in 1 contract
Negative Pledge. No Obligor (a) The Borrowers shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, not create or permit to subsist any Encumbrance Security over all the Vessels or any of its present or future revenues or assets other than an Encumbrance:assets.
(ab) which is an Existing Encumbrance set out inThe Guarantor and/or Samco Shipholding shall not create or permit to subsist any Security over the Shares.
(c) The Borrowers shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by any Obligor;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;an asset.
(d) arising from Paragraphs (a) and (b) above do not apply to any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichSecurity listed below:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is any netting or set-off arrangement entered into by any member of the Bank Group Obligor in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts balances, hereunder any rights of members pledge and set-off in relation to a cash pool arrangement approved by the Lender;
(ii) any lien (including but not limited to maritime liens defined as such pursuant to applicable law) arising by operation of law and in the Bank Group operated on a net balance basisordinary course of trading and securing obligations not more than thirty (30) days overdue;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
Security entered into pursuant to any Finance Document; (iv) is any cash collateral from an Obligor to the Hedging Bank as security (for its own account) for any swap transaction to be entered into between the Hedging Bank and an Obligor, and any cash collateral so placed by any member an Obligor with the Hedging Bank shall be released, discharged and (if required) deregistered immediately after evidence of registration of the Bank Group Mortgages on terms which are generally no worse than the counterparty’s standard or usual terms and entered into in the ordinary course of business both of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fullVessels;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and
Appears in 1 contract
Samples: Senior Secured Revolving Loan Facility Agreement (DHT Holdings, Inc.)
Negative Pledge. No Obligor (a) The Borrower shall (and the Company shall procure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, i) not create or permit to subsist any Encumbrance Security over all or the Vessel, any of their assets or (ii) grant any floating charges or issue any factoring agreement in respect of its present or future revenues or assets other than an Encumbrance:Earnings.
(ab) which is an Existing Encumbrance set out inThe Guarantor shall not create or permit to subsist any Security over the Shares.
(c) The Borrower shall not:
(i) Part 1A sell, transfer or otherwise dispose of Schedule 10 any of its assets on terms whereby they are or may be leased to or re-acquired by any Obligor;
(Existing Encumbrancesii) provided that such Encumbrance is released within 10 Business Days sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the Merger Closing Datebenefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iiiv) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless enter into any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract other preferential arrangement having a similar effect effect, in circumstances where the arrangement or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the ordinary course acquisition of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;an asset.
(d) arising from Paragraphs (a) and (b) above do not apply to any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements whichSecurity listed below:
(i) arises any netting or set-off arrangement entered into by the Borrower in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by any member of the Bank Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances balances, hereunder any rights of pledge and set-off in relation to a cash pool arrangement approved by the Agent (on bank accounts of members behalf of the Bank Group operated on a net balance basisFinance Parties);
(ii) any lien arising by operation of law and in the ordinary course of trading and securing obligations not more than thirty (30) days overdue;
(iii) arises in respect of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging)Security entered into pursuant to any Finance Document;
(iv) is entered into by arising under any member retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms and entered into Borrower in the ordinary course of business of trading on arm’s length terms and on the relevant member of the Bank Groupsupplier’s standard and usual terms; or
(v) which is a retention of title arrangement with respect Security consented to customer premises equipment in favour of a supplier writing by the Agent (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in full;
(f) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member on behalf of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; andFinance Parties).
Appears in 1 contract
Negative Pledge. 18.3.1 No Obligor shall (and the Company Parent shall procure ensure that no member of the Bank Group shall), without the prior written consent of an Instructing Group, Material Subsidiary will) create or permit to subsist any Encumbrance Security Interest over all or any of its present assets.
18.3.2 No Obligor shall (and the Parent shall ensure that no Material Subsidiary will):
(a) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by such Obligor or Material Subsidiary;
(b) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(c) enter into any arrangement under which money or the benefit of a bank or other than account may be applied, set-off or made subject to a combination of accounts; or
(d) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbranceasset.
18.3.3 Clauses 18.3.1 and 18.3.2 above do not apply to:
(a) which is an Existing Encumbrance set out in:
(i) Part 1A of any Security Interest listed in Schedule 10 5 (Existing EncumbrancesSecurity Interest) provided that such Encumbrance is released within 10 Business Days of except to the Merger Closing Date; or
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that extent the principal amount secured thereby may not be increased unless any Encumbrance by that Security Interest exceeds the amount stated in respect of such increased amount would be permitted under another paragraph of this Clause 25.2that Schedule;
(b) which arises by operation of Law any netting or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises in the ordinary course of trading and/or by operation of Law;
(ii) is off arrangement entered into by any member of the Bank Group Obligors or any Subsidiary in the normal ordinary course of its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisbalances;
(iiic) arises in respect any lien arising by operation of netting or set off arrangements contained in any Hedging Agreement or other contract permitted under Clause 25.12 (Limitations on Hedging);
(iv) is entered into by any member of the Bank Group on terms which are generally no worse than the counterparty’s standard or usual terms law and entered into in the ordinary course of business of the relevant member of the Bank Group; or
(v) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment in respect of which the purchase price has not been paid in fulltrading;
(fd) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) Security Interest over or affecting any asset acquired by a any of the Obligors or any member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, date of this Agreement if:
(i) such Encumbrance the Security Interest was not created in contemplation of the acquisition of such that asset by a any of the Obligors or any member of the Bank Group;
(ii) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by any of the Obligors or any member of the Group; and
(iiiii) (other than in respect of an asset acquired pursuant to a Permitted Acquisition) the Financial Indebtedness secured thereby Security Interest is Financial Indebtedness of, removed or is assumed by, the relevant acquiring member discharged within three months of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) date of Clause 25.4 (Financial Indebtedness) and the amount acquisition of Financial Indebtedness so secured is not increased at any timesuch asset;
(he) any Security Interest over or affecting any asset of any company which becomes a member of the Bank Group Material Subsidiary after the Original Execution Datedate of this Agreement, where such Encumbrance the Security Interest is created prior to the date on which such that company becomes a member of the Bank GroupMaterial Subsidiary, if:
(i) such Encumbrance the Security Interest was not created in contemplation or as a direct or indirect result of the acquisition of such that company;
(ii) the principal amount secured has not increased in contemplation or as a direct or indirect result of or since the acquisition of that company; and
(iii) the Security Interest is removed or discharged within six months of that company becoming a Material Subsidiary;
(f) any Security Interest securing the Senior Debt or (otherwise) for the benefit of any of the Finance Parties;
(g) any Security Interest arising under the "Security Documents" as defined in the Mezzanine Facility Agreement and the Investor Loan Agreement (respectively);
Appears in 1 contract
Samples: Bridge Facility Agreement (Aramex International LTD)
Negative Pledge. (a) No Obligor shall (and the Company each Obligor shall procure ensure that no member none of the Bank Group shall), without the prior written consent of an Instructing Group, its Subsidiaries will) create or permit to subsist any Encumbrance Security over all or any of its present assets.
(b) No Obligor shall (and each Obligor shall ensure that none of its Subsidiaries will):
(i) sell, transfer or future revenues otherwise dispose of any of its assets on terms whereby they are or assets may be leased to or re-acquired by an Obligor or any other than member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an Encumbrance:asset.
(c) Paragraph (a) which is an Existing Encumbrance set out inand (b) above do not apply to:
(i) Part 1A liens arising solely by operation of Schedule 10 (Existing Encumbrances) provided that such Encumbrance is released within 10 Business Days law and in the ordinary course of the Merger Closing Date; ortrading;
(ii) Part 1B of Schedule 10 (Existing Encumbrances) provided that the principal amount secured thereby may not be increased unless any Encumbrance in respect of such increased amount would be permitted under another paragraph of this Clause 25.2;
(b) which arises by operation of Law or by a contract having a similar effect or under an escrow arrangement required by a trading counterparty of any member of the Bank Group and in each case arising or entered into the ordinary course of business of the relevant member of the Bank Group;
(c) which is created pursuant to any of the Finance Documents (including, for the purposes of securing any Alternative Baseball Financing) and any Bridge Finance Documents;
(d) arising from any Finance Leases, sale and leaseback arrangements or Vendor Financing Arrangements permitted to be incurred pursuant to Clause 25.4 (Financial Indebtedness);
(e) which arises in respect of any right rights of set-off, netting arrangement, title transfer or title retention arrangements which:
(i) arises off existing in the ordinary course of trading and/or by operation of Law;
(ii) is entered into by activities between any member of the Bank Group in the normal course of and its banking arrangements for the purpose of netting debit and credit balances on bank accounts of members of the Bank Group operated on a net balance basisrespective suppliers or customers;
(iii) arises in respect rights of netting set-off arising by operation of law or set off arrangements contained in by contract by virtue of the provision to any Hedging Agreement member of the Group of clearing bank facilities, cash pooling facilities, overdraft facilities or other contract hedging facilities permitted under Clause 25.12 (Limitations on Hedging)this Agreement;
(iv) is entered into by any retention of title to goods supplied to any member of the Bank Group where such retention is required by the supplier in the ordinary course of its trading activities and on its standard terms and the goods in question are supplied on credit;
(v) Security (except for any Security expressed to be created as a floating charge) (or a transaction (“Quasi Security”) described in paragraph (b) above) arising under:
(A) finance leases, hire purchase, conditional sale agreements, or other agreements for the acquisition of assets on deferred payment terms permitted under Clause 22.15 (Leasing Arrangements);
(B) factoring agreements or sale and lease back arrangements permitted under Clause 22.20 (Factoring and Sale and Leasebacks), and only to the extent such Security or Quasi Security is granted by the relevant Obligor over assets comprised within or constituted by such arrangements;
(vi) Security arising under the Security Documents;
(vii) Security or Quasi Security existing at the time of acquisition on or over any asset acquired by it after the date of this Agreement or, in the case of a person which becomes a member of the Group after the date of this Agreement, any Security or Quasi Security existing on or over its assets when it became a member of the Group, in each case, if:
(A) such Security or Quasi Security was not created in contemplation of or in connection with that acquisition or, as the case may be, it becoming a member of the Group;
(B) the principal amount secured has not been increased in contemplation of or in connection with that acquisition or, as the case may be, it becoming a member of the Group; and
(C) such Security or Quasi Security is removed or discharged within 6 months of the date of such acquisition or, as the case may be, the date on which such person becomes a member of the Group;
(viii) any Security or Quasi Security to which the Majority Lenders have given their prior written consent;
(ix) inchoate Security for taxes, assessments or governmental charges or levies not yet due and payable and Security for taxes, assessments or governmental charges or levies, which are generally no worse being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the assets subject to any such Security;
(x) Security imposed by any court pursuant to a judgment or award not resulting in an Event of Default and in respect of which the relevant Group Company shall in good faith be initiating an appeal or proceedings for review in respect of which the court has granted a subsisting stay of execution pending such appeal or proceedings;
(xi) Security (other than the counterparty’s standard any Security imposed by ERISA) (a) imposed by law or usual terms and entered into deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, (b) incurred in the ordinary course of business (or in the case of trade contracts in the ordinary course of trading) to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money) or (c) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that (I) with respect to paragraphs (a), (b) and (c) hereof, such Security is for amounts not yet due and payable or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with U.S. GAAP, which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the relevant property or assets subject to any such Security, and (II) to the extent such Security is not imposed by law, such Security shall in no event encumber any property other than cash and Cash Equivalents which have been deposited with such security holder or has otherwise been subordinated to the Security securing the Secured Obligations hereunder pursuant to a landlord security waiver and access agreement;
(xii) Security in favour of customs and revenues authorities which secure payment of customs duties in connection with the importation of goods to the extent required by law;
(xiii) any Security or Quasi Security securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Security or Quasi Security given by any member of the Bank Group; or
Group other than any permitted under paragraphs (vi) which is a retention of title arrangement with respect to customer premises equipment in favour of a supplier (xii) above) does not exceed $10,000,000 (or its Affiliate); provided that the title is only retained to individual items of customer premises equipment equivalent in respect of which the purchase price has not been paid in full;
(fanother currency or currencies) which arises in respect of any judgment, award or order or any tax liability for which an appeal or proceedings for review are being diligently pursued in good faith, provided that the affected member of the Bank Group shall have or will establish such reserves as may be required under applicable generally accepted accounting principles in respect of such judgment, award, order or tax liability;
(g) over or affecting any asset acquired by a member of the Bank Group after the Original Execution Date and subject to which such asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such asset by a member of the Bank Group; and
(ii) the Financial Indebtedness secured thereby is Financial Indebtedness of, or is assumed by, the relevant acquiring member of the Bank Group, is Financial Indebtedness which at all times falls within paragraph (g) or (k) of Clause 25.4 (Financial Indebtedness) and the amount of Financial Indebtedness so secured is not increased at any time;
(h) over or affecting any asset of any company which becomes a member of the Bank Group after the Original Execution Date, where such Encumbrance is created prior to the date on which such company becomes a member of the Bank Group, if:
(i) such Encumbrance was not created in contemplation of the acquisition of such company; and.
Appears in 1 contract
Samples: Facilities Agreement (Innospec Inc.)
