Excluded Costs The following items are considered general overhead items and shall not be billed to the District:
2.1.6.1 Salaries and other compensation of Developer’s personnel stationed at Developer’s principal office or offices other than the Project Field Office, except as specifically provided in Subparagraphs 2.1.3.2. and 2.1.3.4.
2.1.6.2 Expenses of Developer’s principal office and offices other than the Project Field Office.
2.1.6.3 Overhead and general expenses, except as may be expressly included in this Section 2.
2.1.6.4 Developer’s capital expenses, including interest on Developer’s capital employed for the Work.
2.1.6.5 Costs that would cause the Guaranteed Maximum Price (as adjusted by Change Order) to be exceeded.
Permitted Debt Create, incur, guarantee or suffer to exist any Debt, except the following (collectively, "Permitted Debt"):
(a) the Obligations;
(b) Subordinated Debt, together with unsecured Debt permitted under Section 10.2.1(i), up to $10,000,000 in the aggregate at any time;
(c) Permitted Purchase Money Debt;
(d) existing Borrowed Money not satisfied with the initial Loan proceeds and set forth on Schedule 10.2.1;
(e) [Reserved];
(f) Debt that is in existence when a Person becomes a Subsidiary or that is secured by an asset when acquired by an Obligor or Subsidiary, as long as such Debt was not incurred in contemplation of such Person becoming a Subsidiary or such acquisition, and does not exceed $2,500,000 in the aggregate at any time;
(g) Permitted Contingent Obligations;
(h) Refinancing Debt as long as each Refinancing Condition is satisfied;
(i) unsecured Debt, together with Subordinated Debt permitted under Section 10.2.1(b), up to $10,000,000 in the aggregate at any time;
(j) intercompany Debt permitted under Section 10.2.5(a);
(k) Debt of any Excluded Subsidiary, in an aggregate outstanding amount, for all Excluded Subsidiaries, not to exceed $5,000,000 at any time;
(l) Revolving Loan Obligations (including those arising from Bank Products) long as such Revolving Loan Obligations do not exceed the Maximum ABL Principal Obligations (as defined in the Intercreditor Agreement);
(m) Debt under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers' compensation claims, in each case incurred in the Ordinary Course of Business, and unsecured reimbursement obligations in respect of any of the foregoing;
(n) to the extent constituting Debt, unsecured obligations in respect of purchase price adjustments, earn-outs, non-competition agreements, and other similar arrangements, or other deferred payments of a similar nature, representing consideration for a Permitted Acquisition and incurred in connection with any Permitted Acquisition, not to exceed $500,000 in the aggregate, so long as such unsecured Debt is on terms and conditions reasonably satisfactory to Agent;
(o) customer advances or deposits received for goods and services purchased in the Ordinary Course of Business;
(p) Indebtedness representing installment insurance premiums (for insurance not to exceed 1 year) owing in the Ordinary Course of Business; and
(q) Other Debt up to $1,000,000 in the aggregate at any time.
Permitted Activities The purpose of the Issuer is, and the Issuer will have the power and authority, and is authorized, to engage in the following activities:
(i) to acquire the Receivables and other Sold Property under the Sale and Servicing Agreement from the Depositor in exchange for the Notes;
(ii) to Grant the Collateral to the Indenture Trustee under the Indenture;
(iii) to enter into and perform its obligations under the Transaction Documents;
(iv) to issue the Notes under the Indenture and to facilitate the sale of the Notes by the Depositor;
(v) to pay principal of and interest on the Notes;
(vi) to administer and manage the Trust Property;
(vii) to make payments to the Noteholders and distributions to the holder of the Residual Interest; and
(viii) to take other actions necessary or advisable to accomplish the activities listed above or that are incidental to the activities listed above.
Excluded Collateral Notwithstanding the foregoing provisions of this ss.2, such grant of security interest shall not extend to, and the term "Collateral" shall not include, any chattel paper and general intangibles which are now or hereafter held by the Company as licensee, lessee or otherwise, to the extent that (i) such chattel paper and general intangibles are not assignable or capable of being encumbered as a matter of law or under the terms of the license, lease or other agreement applicable thereto (but solely to the extent that any such restriction shall be enforceable under applicable law), without the consent of the licensor or lessor thereof or other applicable party thereto and (ii) such consent has not been obtained; provided, however, that the foregoing grant of security interest shall extend to, and the term "Collateral" shall include, (1) any and all proceeds of such chattel paper and general intangibles to the extent that the assignment or encumbering of such proceeds is not so restricted and (2) upon any such licensor, lessor or other applicable party consent with respect to any such otherwise excluded chattel paper or general intangibles being obtained, thereafter such chattel paper or general intangibles as well as any and all proceeds thereof that might have theretofore have been excluded from such grant of a security interest and the term "Collateral."
Permitted Dispositions (a) Owner may elect to sell or transfer the Hotel (in whole, but not in part), or to permit the transfer of a Controlling Interest, to another Person provided that:
(i) such Person is not a Prohibited Party (defined below), and
(ii) such Person shall agree, in the case of any sale or transfer of the Hotel, to be bound by the terms of this Agreement and the other Hyatt Agreements (including the Technical Services Agreement (if still in effect) and to assume all of Owner’s obligations hereunder and thereunder (accrued and unaccrued) by way of an assumption agreement reasonably acceptable to Hyatt, to be executed concurrently with the sale or transfer of the Hotel.
(b) At least 30 calendar days in advance of the closing of any sale or transfer permitted under (a) above, Owner shall provide written notice to Hyatt, and shall promptly furnish all information reasonably requested by Hyatt to confirm that any prospective buyer or transferee is not a Prohibited Party.
(c) In the case of any assignment of this Agreement and the other Hyatt Agreements, upon satisfaction of the conditions set forth in sub-sections (a)(i), (a)(ii) and (b) above, Owner shall be relieved of any liability or obligation hereunder arising after the date of such assignment.
(d) If such sale pursuant to subsection (a) above is a transfer of a Controlling Interest, the transferee shall execute and deliver to Hyatt as a condition to such transfer an acknowledgement of all terms and conditions of this Agreement and that this Agreement shall continue to be binding upon Owner on and following the date of such transfer.
(e) Owner may elect to effect a transfer of an Ownership Interest that does not constitute a Controlling Interest (as a transfer of a Controlling Interest is governed by the above provisions in this Section 12.2) to another Person, subject to this Agreement and provided that:
(i) such transferee is not a Person or Persons (A) who do not have sufficient financial capacity (along with the other Persons having Ownership Interests) to perform the obligations of Owner under this Agreement, (B) who are controlled by or associated with organized crime, (C) who have been convicted of a serious crime such that the Person’s affiliation with the Hotel would materially and adversely impact the reputation of the Hotel, Hyatt and/or is Affiliates, (D) who is a Restricted Person, or (E) who would be considered by regulators in the gaming industry to be unsuitable business associates of Hyatt or its Affiliates or whose affiliation with the Hotel would in any way jeopardize the Hotel’s licenses;
(ii) at least 30 calendar days in advance of any such transfer permitted under this subsection (e), Owner shall provide written notice to Hyatt, and shall promptly furnish all information reasonably requested by Hyatt to confirm that any prospective transferee is not a party prohibited by this subsection (e); and
(iii) if such transferee is a Brand Owner or an investor in a Brand Owner, Owner shall institute and maintain appropriate confidentiality measures and controls reasonably designed to prevent such transferee and/or those individuals actively involved in the operations, management, marketing and strategic planning of the Person engaged, directly or indirectly, in the issuance of licenses, issuance of franchises or owning or controlling of a Brand Owner from obtaining any confidential or proprietary information of Hyatt and any other information deemed to be confidential pursuant to the Agreement.
(f) In the case of any Ground Lease relating to the Hotel, whether to or from an Affiliate of the then Owner or any owner (direct or indirect) of Owner or otherwise, (i) the lessee shall become the “Owner” hereunder and shall assume all of the liabilities and obligations of Owner herein set forth; (ii) the lessor shall execute a Lessor Non-Disturbance Agreement as described in Section 13.3, and (iii) if the lessee is an Affiliate of Owner, the lessor shall not be relieved of any liabilities or obligations of Owner hereunder.
(g) The use and presentation of Hyatt Trademarks (including as the same may appear in photographs of the Hotel) in any offering memorandum, prospectus or other similar distribution, as well as information relating to the terms and conditions of the Hyatt Agreements, shall be subject to Hyatt’s prior written approval.
(h) Except as set forth above, Owner shall not transfer the Hotel or its Controlling Interest or assign its rights and obligations under this Agreement.
Excluded Expenditures The Recipient undertakes that the proceeds of the Financing shall not be used to finance Excluded Expenditures. If the Association determines at any time that an amount of the Financing was used to make a payment for an Excluded Expenditure, the Recipient shall, promptly upon notice from the Association, refund an amount equal to the amount of such payment to the Association. Amounts refunded to the Association upon such request shall be cancelled.
Permitted Indebtedness Neither the Company nor any Subsidiary ---------------------- will create, incur or assume any Indebtedness other than:
(a) Indebtedness represented by or incurred under the Notes and the Purchase Agreement and the Revolving Credit Facility;
(b) Indebtedness incurred to prepay or repay in full the remaining outstanding principal amount of Notes and all other amounts due thereon or under the Purchase Agreement;
(c) Indebtedness existing on the Closing Date and identified on the Disclosure Schedule;
(d) Indebtedness incurred solely as an extension, renewal, refinancing or replacement of Indebtedness of the Company or of its Subsidiaries under clause (iii) above (but excluding any Indebtedness under clause (iii) above to the extent such Indebtedness is repaid with the proceeds from the sale of the Notes and Warrants), provided that any such extension, renewal or refinancing (A) shall be on terms which on balance are substantially as favorable to the Company (or the relevant Subsidiary) as the terms of such existing Indebtedness (other than changes in the amount of the interest rate and other than the imposition of additional Liens permitted by Section 9.10(f) hereof) and (B) shall not be in a greater principal amount or have a shorter average life or earlier maturity than such existing Indebtedness;
(e) Indebtedness in an aggregate principal amount outstanding not exceeding $20,000,000 incurred solely to finance the purchase price of additional towers and related facilities and equipment;
(f) Interest Rate Protection Agreements required by the Revolving Credit Facility or incurred for hedging purposes in the ordinary course of business; and
(g) Additional Indebtedness in an amount which , together with sale and leaseback obligations permitted under Section 9.11, does not exceed $2,000,000.
Permitted Contests Lessee shall have the right to contest the amount or validity of any Imposition to be paid by Lessee or any Legal Requirement or Insurance Requirement or any lien, attachment, levy, encumbrance, charge or claim (“Claims”) not otherwise permitted by Section 12.1, by appropriate legal proceedings in good faith and with due diligence (but this shall not be deemed or construed in any way to relieve, modify or extend Lessee’s covenants to pay or its covenants to cause to be paid any such charges at the time and in the manner as in this Section provided), on condition, however, that such legal proceedings shall not operate to relieve Lessee from its obligations hereunder and shall not cause the sale or risk the loss of any portion of the Leased Property, or any part thereof, or cause Lessor or Lessee to be in default under any mortgage, deed of trust, security deed or other agreement encumbering the Leased Property or any interest therein. Upon the request of Lessor, Lessee shall either (a) provide a bond or other assurance reasonably satisfactory to Lessor that all Claims which may be assessed against the Leased Property together with interest and penalties, if any, thereon will be paid, or (b) deposit within the time otherwise required for payment with a bank or trust company as trustee upon terms reasonably satisfactory to Lessor, as security for the payment of such Claims, money in an amount sufficient to pay the same, together with interest and penalties in connection therewith, as to all Claims which may be assessed against or become a Claim on the Leased Property, or any part thereof, in said legal proceedings. Lessee shall furnish Lessor and any lender of Lessor with reasonable evidence of such deposit within five (5) days of the same. Lessor agrees to join in any such proceedings if the same be required legally to prosecute such contest of the validity of such Claims; provided, however, that Lessor shall not thereby be subjected to any liability or loss for the payment of any costs or expenses in connection with any proceedings brought by Lessee; and Lessee covenants to indemnify and save harmless Lessor from any such liabilities, losses, costs or expenses. Lessee shall be entitled to any refund of any Claims and such charges and penalties or interest thereon which have been paid by Lessee or paid by Lessor and for which Lessor has been fully reimbursed. In the event that Lessee fails to pay any Claims when due or to provide the security therefor as provided in this Section and diligently to prosecute any contest of the same, Lessor may, upon ten (10) days’ advance Notice to Lessee, and Lessee’s failure to correct the same within such ten (10) day period, pay such charges together with any interest and penalties and the same shall be repayable by Lessee to Lessor as Additional Charges at the next Payment Date provided for in this Lease; provided, however, that should Lessor reasonably determine that the giving of such Notice would risk loss to the Leased Property or cause damage to Lessor, then Lessor shall give such Notice as is practical under the circumstances. Lessor reserves the right to contest any of the Claims at its expense not pursued by Lessee. Lessor and Lessee agree to cooperate in coordinating the contest of any Claims.
Permitted Payments Second Lien Liabilities
(a) prior to the Senior Discharge Date, directly or indirectly make any Payment directly or indirectly in respect of the Second Lien Liabilities at any time:
(i) if:
(A) the Payment is of: A44420063
(I) any of the principal amount of the Second Lien Liabilities which is either:
(1) not prohibited by the Senior Financing Agreements; or
(2) paid on or after the final maturity date of the relevant Second Lien Liabilities (provided that, unless the Senior Lender Discharge Date has occurred or as otherwise agreed by the Majority Senior Lenders and the Parent, such final maturity date does not breach any maturity restrictions applicable to such Second Lien Liabilities in the Senior Financing Agreements (as applicable) (or, in the case of any amendment which has the effect of shortening the maturity date applicable to such Second Lien Liabilities, would not breach any such maturity restrictions applicable to such Second Lien Liabilities in the Senior Financing Agreements (as applicable) were that Second Lien Liability to be incurred at the time of that amendment and with that amended maturity date)); or
(II) any other amount which is not an amount of principal (including any interest which has been capitalised to become an amount of principal);
(B) no Second Lien Payment Stop Notice is outstanding; and
(C) no Senior Payment Default has occurred and is continuing;
(ii) if the Required Senior Consent has been obtained;
(iii) if the Payment is of Permitted Second Lien Financing Agent Liabilities;
(iv) of any Notes Security Costs;
(v) of costs, commissions, taxes, fees and expenses incurred in respect of or in relation to (or reasonably incidental to) any Permitted Second Lien Financing Documents (including in relation to any reporting or listing requirements under the Permitted Second Lien Financing Documents);
(vi) if the Payment is funded directly or indirectly with Permitted Second Lien Financing Debt, Permitted Parent Financing Debt and/or the proceeds of any indebtedness incurred under or pursuant to any Permitted Second Lien Financing Document and/or Senior Parent Notes;
(vii) if the Payment is funded directly or indirectly with the proceeds of Qualified Equity Interests or Subordinated Shareholder Funding of the Parent or Available Restricted Payment Amounts; or
(viii) if the Payment is of any principal amount of the Second Lien Liabilities (together with any related accrued but unpaid interest) in accordance with a provision in any Permitted Second Lien Financing Agreement which is substantially equivalent to:
(A) clause 11.1 (Illegality) of the Senior Facilities Agreement; A44420063
(B) clause 11.8 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank) of the Senior Facilities Agreement; or
(C) to the extent an equivalent payment has been made (to the extent required) pursuant to the terms of the Senior Financing Agreements (excluding, for this purpose, any Permitted Second Lien Financing Agreement), clause 12.1 (Change of Control) of the Senior Facilities Agreement; or
(ix) for so long as a Permitted Second Lien Financing Event of Default is continuing, if the Payment is of all or part of the Second Lien Liabilities as a result of those Second Lien Liabilities being released or otherwise discharged solely in consideration of the issue of shares in the Parent or in any Holding Company of the Parent (each a "Debt for Equity Swap") and provided that no cash or cash equivalent payment is made in respect of the Second Lien Liabilities and any Liabilities owed by a Group Company to another Group Company, the Investors or any other Holding Company of the Parent that arise as a result of any such Debt for Equity Swap are subordinated to the Senior Secured Liabilities pursuant to this Agreement and any Liabilities owed by a Group Company to another Group Company arising as a result of such Debt for Equity Swap are subject to Transaction Security; or
(x) of any other amount not exceeding USD5,000,000 (or its equivalent in other currencies) in aggregate in any financial year of the Parent; and
(b) on or after the Senior Discharge Date, make any Payment directly or indirectly in respect of the Second Lien Liabilities at any time. A reference in this Clause 5.2 to a Payment shall be construed to include any other direct or indirect step, matter, action or dealing in relation to any Second Lien Liabilities which are otherwise prohibited under Clause 5.1 (Restriction on Payment: Second Lien Liabilities).
Excluded Positions When a College temporarily assigns an employee to the duties and responsibilities of a position excluded from the provisions of this Collective Agreement, the employee's obligations to contribute to the regular monthly Union dues under Article 5.4 and his/her seniority shall continue during the period of such temporary assignment up to a maximum period of twelve
