Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except: (a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books; (b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books; (c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation; (d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property; (e) Liens existing on the Closing Date and described in Schedule 6.07 hereto; (f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01; (g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be; (h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”); (i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate. (j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries; (k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business; (l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event; (m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof: (n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property; (o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business; (p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software; (q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing; (r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes; (s) Liens securing letters of credit entered into in the ordinary course of business; (t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries; (u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings; (v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary; (w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000; (x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security; (y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets; (z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 5 contracts
Samples: Letter of Credit and Reimbursement Agreement (PPL Energy Supply LLC), Credit Agreement (PPL Energy Supply LLC), Revolving Credit Agreement (PPL Energy Supply LLC)
Restriction on Liens. The Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries to, to create, incur, assume or suffer to exist any Lien upon any Principal Property, whether owned at the date of this Indenture or thereafter acquired, to secure any Indebtedness, without making effective provision whereby the Securities (together with, if the Company shall so determine, any Indebtedness of the Company or any Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured by such Lien equally and ratably with (or prior to) any and all other Indebtedness secured by Liens so long as that Indebtedness is so secured unless, after giving effect thereto, the aggregate amount of all Indebtedness secured by Liens plus all Attributable Debt of the Company and its Restricted Subsidiaries with respect to Sale and Lease-Back Transactions would not exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 10.09 shall not apply to, and there shall be excluded from Indebtedness secured by Liens in any property computation under this Section 10.09 or assets of Section 10.08, Indebtedness secured by any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e1) Liens existing on the Closing Date and described in Schedule 6.07 heretodate of the Indenture (including those securing any refinancing of debt underlying such liens);
(f2) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof by the Company or a Restricted Subsidiary; provided that (and not created in anticipation thereof); provided, that, in any such case no A) each such Lien shall extend at all times be confined solely to the asset or cover any other asset assets so acquired and (B) the principal amount of Indebtedness secured by each such Lien shall at no time exceed the cost of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred assets in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating question to the purchase and sale of any commodity Company or the respective Restricted Subsidiary (including power purchase and sale agreements, any commodity hedge or derivative regardless the principal amount of whether any such transaction is a “financial” or “physical transaction”the Indebtedness secured thereby);
(i3) Liens in favor of the Company or any wholly-owned Restricted Subsidiary;
(4) Liens in favor of any governmental body to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(5) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties property to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing secure all or any part of the cost of acquiring, constructing substantially repairing or altering, constructing, developing or substantially improving such asset; providedproperty, that or to secure Indebtedness incurred to provide funds for any such purpose; provided that (A) such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within comes into existence not later than 180 days after the later of (i) the completion of the acquisition, construction substantial repair or alteration, construction, development or substantial improvement thereof:
of such property or (nii) any Liens the placing in operation of such property or of such property as so substantially repaired or altered, constructed, developed or substantially improved and (B) the principal amount of Indebtedness secured by such Lien does not exceed the cost of such acquisition, repair, alteration, construction, development or improvement; provided, however, that if such Indebtedness is in connection with the issuance acquisition of taxany Timberlands, and the Board of Directors of the Company has determined, within 180 days of such acquisition, that the Company will seek such Indebtedness (from a lender or investor not including the Company or any Subsidiary of the Company), then the applicable Lien shall be deemed to be included in this clause (5) if such Lien is created within a further 180 days after the end of such first 180-exempt industrial development day period;
(6) Liens securing obligations issued by a State, territory or pollution control bonds possession of the United States, or other similar bonds any political subdivision of any of the foregoing, or the District of Columbia, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued pursuant to by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(b103(a) of the Internal Revenue Code of 1986, as amendedamended (or any successor to such provision), as in effect at the time of the issuance of such obligations; or
(7) Any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to finance in the foregoing clauses (1) through (6), inclusive; provided, however, that such extension, renewal or replacement Lien shall (A) be limited to all or any part of the purchase price same property that secured the Lien extended, renewed or replaced (plus improvements on such property) and (B) not exceed the principal amount of or the cost Indebtedness, plus any premium of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used fee payable in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding replacement, so secured at the time of any Debt such extension, renewal or other obligation secured by any Lien permitted by clauses (a) through (x) replacement. For purposes of this Section; providedSection 10.09 and Section 10.08, that an "acquisition" of property (including real, personal or intangible property or shares of capital stock or Indebtedness) shall include any transaction or series of transactions by which the Company or a Restricted Subsidiary acquires, directly or indirectly, an interest, or an additional interest (to the extent thereof), in such Debt property, including an acquisition through merger or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets consolidation with, or property an acquisition of the Borrower or any of its Restricted Subsidiariesan interest in, other than Liens on the Voting Stock of the Borrower a Person owning an interest in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableproperty.
Appears in 3 contracts
Samples: Indenture (Bowater Inc), Indenture (Bowater Inc), Senior Indenture (Bowater Inc)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt permitted under Section 6.6(a);
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet payable, (b) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 3 contracts
Samples: Loan Agreement (Pharmaceutical Product Development Inc), Loan Agreement (Pharmaceutical Product Development Inc), Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Company) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:"PERMITTED LIENS"):
(ai) Liens existing on the Closing Date and listed on SCHEDULE 7.02 hereto and any modifications, replacements, renewals or extensions thereof; PROVIDED that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under SECTION 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by SECTION 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet more than 30 days over due or which may be paid without penalty or that are being contested in good faith and by appropriate proceedings and for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP shall have been set aside on its booksGAAP;
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’suppliers, warehousemen’s and , materialmen, workmen, mechanics’ liens , carriers and other similar liens arising like Liens imposed by Law (including without limitation under Article 2 of the UCC) which were incurred in the ordinary course of business and which secure payment of obligations (A) are for amounts not more than 45 30 days past due overdue or which may be paid without penalty or (B) which are being contested in good faith by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, Performance Guaranties not constituting Guaranty Obligations, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Company and its - 104 - Subsidiaries maintain adequate reserves in accordance with GAAP shall have been set aside on its booksGAAP; PROVIDED that the aggregate amount of the obligations or other liabilities secured by such Liens, together with the aggregate amount of outstanding deposits permitted under SECTION 7.06(a)(ix), do not exceed $10,000,000 at any time;
(cvii) Liens arising out of pledges upon specific items or deposits under worker’s compensation laws, unemployment insurance, old age pensions, inventory or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements goods and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting proceeds of the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower Company or any of its Restricted Subsidiaries after securing such Person's obligations in respect of bankers' acceptances or documentary letters of credit issued or created for the date hereof existing on any account of such property Person to facilitate the shipment or asset at the time storage of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to inventory or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may begoods;
(hviii) Lienspledges or deposits of cash and Cash Equivalents securing deductibles, deposits and/or self-insurance, co-payment, co-insurance, retentions or similar arrangements obligations to secure providers of insurance in the performance ordinary course of bidsbusiness;
(ix) Liens on (A) incurred premiums, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety dividends and appeal bonds, performance bonds rebates and other obligations identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to SECTION 7.01(ix);
(x) Liens arising solely by virtue of a like nature any statutory or common Law provision relating to banker's liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business business;
(xi) licenses, leases or subleases granted to third Persons or to the Company or its Subsidiaries by the Borrower or Company and its Subsidiaries in the ordinary course of business not interfering in any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to material respect with the purchase and sale business of any commodity (including power purchase Group Company and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”not otherwise prohibited by SECTION 7.05(xiv);
(ixii) Liens zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on assets the use of property or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchiseaggregate, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower Company or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lxiii) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under SECTION 8.01;
(xvi) Liens securing Indebtedness permitted to be incurred under SECTION 7.01(i), (iii), (iv) and (v);
(xvii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries Company and not created in contemplation of such event;
(mxviii) any Lien on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) of any Person existing at the purpose of financing all time such Person is merged or any part consolidated with or into the Company or a Subsidiary of the cost Company and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxix) rights any Lien existing on any asset (other than on the Equity Interests of lessees arising under leases entered into one or more Subsidiaries) prior to the acquisition thereof by the Borrower Company or a Subsidiary of the Company and not created in contemplation of such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money deposits made by the Company or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any letter of the foregoingintent or purchase agreement with respect to a Permitted Business Acquisition or a Permitted Joint Venture;
(rxxi) any Liens on furniture cash and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens Cash Equivalents securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition Swap Obligations owing to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or Persons who are not such lease agreement is intended as a securitySwap Creditors; provided, PROVIDED that the aggregate fair market value amount of the obligations all cash and Cash Equivalents subject to such Liens shall not may at any no time exceed $500,000,0002,000,000;
(xxxii) Liens on property which is any assets or Equity Interests of a Foreign Subsidiary of the subject Company securing Indebtedness of such Foreign Subsidiary incurred pursuant to SECTION 7.01(xii);
(xxiii) Liens securing Sale/Leaseback Transactions permitted under SECTION 7.13;
(xxiv) Liens on assets of one or more leases designating the Borrower or any of its Restricted Project Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a securitysecuring Project Non-Recourse Debt permitted by SECTION 7.01(xv);
(yxxv) Liens arising out that might be deemed to exist on assets subject to a repurchase agreement constituting a Cash Equivalent permitted hereunder, if such Liens are deemed to exist solely because of the refinancing, extension, renewal or refunding existence of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Sectionsuch repurchase agreement; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;and
(zxxvi) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as securing Indebtedness permitted under SECTION 7.01 if the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000 at any time.
Appears in 2 contracts
Samples: Credit Agreement (Synagro Technologies Inc), Credit Agreement (Synagro Technologies Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biii) Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $250,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(ev) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, public or statutory obligations, surety and appeal bonds, performance bonds unemployment insurance and other types of social security and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivi) Liens securing obligations in respect of surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business; provided that (A) in the case of Liens on assets cash and Cash Equivalents, the amount of all cash and Cash Equivalents subject to such Liens may at no time exceed $5,000,000 in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.aggregate;
(jvii) zoning restrictions, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lviii) (A) Liens securing Capital Lease Obligations permitted to be incurred under Section 7.01(iii) and refinancings or replacements thereof permitted to be incurred under Section 7.01(iv) and (B) Liens securing Purchase Money Indebtedness permitted to be incurred under Section 7.01(iii);
(ix) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mx) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxi) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxii) any Liens on or reservations with Lien securing Refinancing Indebtedness in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Indebtedness of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through ix), (x), (xi) or (xii) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and Indebtedness is not secured by any additional assets;
(zxiii) other Liens on assets arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or property title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the Borrower ordinary course of business; and
(xv) licenses, leases or subleases granted to third Persons in the ordinary course of business not interfering in any material respect with the business of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableany Group Company.
Appears in 2 contracts
Samples: Credit Agreement (Global Cash Access, Inc.), Credit Agreement (Central Credit, LLC)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic the Lower Mt. Bethel Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 2 contracts
Samples: Five Year Credit Agreement (PPL Energy Supply LLC), 364 Day Credit Agreement (PPL Energy Supply LLC)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(gf) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(hg) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(ih) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(ji) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(kj) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(lk) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(ml) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(nm) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(on) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(po) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qp) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(rq) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(sr) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(us) Liens in addition to those permitted by clauses (a) through (ts) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(vt) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted other Subsidiary;
(wu) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(xv) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yw) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (xw) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;; and
(zx) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 2 contracts
Samples: Credit Agreement (PPL Electric Utilities Corp), Credit Agreement (PPL Electric Utilities Corp)
Restriction on Liens. The Borrower Guarantor will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(i) Any Lien on any property acquired or constructed by the Guarantor or a Subsidiary and created contemporaneously with, or within 24 months after, such acquisition or the completion of such construction and commencement of full operation of such property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such property, or (ii) the acquisition by the Guarantor or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Guarantor or such Subsidiary, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not spread to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 1.10 or any Lien securing the Debt of the Guarantor or of any Subsidiary on October 25, 1999 or of a corporation at the time such as carriers’corporation becomes a Subsidiary, landlords’or any extensions, warehousemen’s renewals or refundings of any such Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or refunding and mechanics’ liens and other similar liens arising in that such extension, renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Guarantor or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Wholly-Owned Consolidated Subsidiary;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges Any Lien created by the Loan Documents or encumbrances (whether or not recorded) affecting the use of real property;1999 Loan Documents; and
(e) Liens existing on Secured Debt of the Closing Date Guarantor and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments its Subsidiaries which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired otherwise be prohibited by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof foregoing restrictions (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend including Secured Debt permitted to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations be secured under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses subsections (a) through (td) on above) so long as the sum of any such Secured Debt hereafter incurred and outstanding at the time plus Attributable Debt of the Guarantor and any Subsidiaries in respect of Sale and Leaseback Transactions hereafter entered into and outstanding at the time (excluding Attributable Debt incurred in respect of any Sale and Leaseback Transaction (i) entered into in respect of property acquired by the Guarantor or a Subsidiary not more than 24 months prior to the date such Sale and Leaseback Transaction is entered into or (ii) if the Guarantor, within 120 days before or after such Sale and Leaseback Transaction is entered into applies an amount equal to the greater of (A) the net proceeds of the sale of the property so sold and leased back or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or (B) the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such property at the obligations subject date such arrangement is entered into to such Liens shall not the retirement of Secured Debt (other than at maturity or pursuant to any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt owed to the Guarantor or other obligation secured by any Lien permitted by clauses (aa Wholly-Owned Consolidated Subsidiary) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not at the time exceed the greater of $250,000,000 or 155% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Tangible Assets.
Appears in 2 contracts
Restriction on Liens. The Borrower Guarantor will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(a) (i) any Lien on any property in connection with a Sale and Leaseback Transaction permitted by Section 1.10, (ii) the acquisition by the Guarantor or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Guarantor or such Subsidiary and not created in anticipation of such acquisition, which acquisition is not otherwise prohibited by this Annex A, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not attach to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 1.11 or any Lien securing the Debt of the Guarantor or of any Subsidiary on June 12, 2000 or of a corporation at the time such as carriers’corporation becomes a Subsidiary, landlords’or any extensions, warehousemen’s renewals or refundings of any such Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or refunding and mechanics’ liens and other similar liens arising in that such extension, renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out any Lien securing Debt of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Subsidiary owing to a Subsidiary Guarantor;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting any Lien created by the use of real propertySecond Priority Collateral Documents;
(e) Liens existing on any Lien created by the Closing Date Senior Loan Documents; provided that (i) with respect to any specific Collateral which is also Senior Collateral, a Lien is created simultaneously under the Second Priority Collateral Documents and described in Schedule 6.07 heretois subject to the Collateral Trust and Intercreditor Agreement and (ii) the aggregate principal amount of Senior Debt Obligations to be secured by such Lien shall not exceed the amount permitted by Section 6.02 of the Collateral Trust and Intercreditor Agreement;
(f) judgment Liens arising from judgments which secure payment any Lien under the Exchange Debt First Priority Collateral Documents in favor of legal obligations the Exchange Debt Parties, provided that would not constitute a Default under Section 7.01such Lien is limited to the Exchange Debt First Priority Collateral;
(g) any vendor’s LiensLien under the PCS Pledge Agreement and the Xxxxxxxxx.xxx Pledge Agreement in favor of the Existing Facility Parties and the Synthetic Lease Parties, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no provided that such Lien shall extend is limited to or cover any other asset of the Borrower or "Collateral" as such Restricted Subsidiaries, as the case may beterm is defined in each such document;
(h) Liens, deposits and/or similar arrangements existing Liens under the Synthetic Lease Documents and Liens under Synthetic Leases permitted pursuant to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)Section 1.25;
(i) Liens identified on assets of Schedule 1.11(i) to the Borrower and its Restricted Subsidiaries arising out of obligations or duties Credit Agreement; provided, however, that such Liens do not attach to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.other property other than that identified in such Schedule; and
(j) rights reserved Liens in respect of Debt or Attributable Debt permitted under Sections 1.16(f), (h), (i) and (j) so long as such Liens attach only to (i) the equipment subject to such financing, (ii) the property to which they attach on the Closing Date (or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course case of its business;
(l) any Lien on operating lease which is reclassified as a Capital Lease, any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches subject to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted operating lease on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
Closing Date), or (uiii) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection constructed, developed or purchased with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablefinancing.
Appears in 2 contracts
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect revenues which is of a type constituting or intended to any property constitute Collateral, whether now owned or assets of any kind (real or personalhereafter acquired, tangible or intangible) of other than the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(ai) (A) Liens pursuant to any Loan Document and (B) Liens securing the Term Credit Facilities, provided that, in the case of the foregoing clause (B), (x) such Liens on any Collateral are subordinated to the Liens of the Collateral Agent for the benefit of the Secured Parties pursuant to intercreditor arrangements reasonably satisfactory to the Collateral Agent and (y) if the Term Credit Facilities are secured by a Lien on any Collateral and on any assets other than Collateral, the Collateral Agent is granted a second priority Lien in such assets not constituting Collateral pursuant to security and intercreditor arrangements reasonably satisfactory to the Collateral Agent;
(ii) Liens existing on the Effective Date and listed on Schedule 5.08(b) securing Existing Indebtedness permitted under Section 7.02(iv) and any other liabilities not prohibited under this Agreement and any Permitted Refinancing of the Indebtedness or such other liabilities secured thereby; provided that, unless otherwise consented to by the Administrative Agent, (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.02 and (y) proceeds and products thereof, (B) the amount secured or benefited thereby is not increased above its original principal amount and (C) the direct or any contingent obligor with respect thereto is not changed;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its booksGAAP;
(biv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, workmen’s and mechanics’ liens and or other similar liens like Liens arising in the ordinary course of business which secure payment are not overdue for a period of obligations not more than 45 30 days past due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted, if adequate reserves in accordance with GAAP shall have been set aside respect thereto are maintained on its booksthe books of the applicable Person;
(cv) Liens arising out of pledges or deposits under worker’s compensation lawsin the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other social security legislation, other than any Lien or retirement benefits, trust imposed by ERISA or similar legislationby Canadian Employee Benefits Legislation;
(dvi) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(eA) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure amounts securing the performance of bids, tenders or trade contracts and leases (other than contracts for borrowed moneyIndebtedness), public or statutory obligations, surety and appeal bonds, performance or payment bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower (but excluding any Lien or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale trust arising in respect of any commodity Canadian Pension Plan); and (including power purchase B) Liens of an agent under the Term Credit Facilities in cash collateral accounts consisting solely of the cash proceeds of Dispositions, Insurance Proceeds or Condemnation Awards related to assets not constituting Collateral over which such agent has a first priority security interest;
(vii) easements, rights-of-way, restrictions, encroachments, other minor defects or irregularities in title and sale agreementsother similar encumbrances affecting real property which, any commodity hedge do not materially interfere with the ordinary conduct of the business of the applicable Person;
(viii) Liens securing judgments (or derivative regardless appeal or surety bonds posted in respect of whether any such transaction is a “financial” or “physical transaction”judgments) for the payment of money not constituting an Event of Default under Section 8.01(h);
(iix) Liens securing Indebtedness permitted under Section 7.02(vi); provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired, constructed or improved on the date of acquisition, construction or improvement (except to the extent of interest accrued thereon and any fees or expenses incurred in connection therewith);
(x) Liens on assets property of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity Person existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any Person becomes a Subsidiary of its Restricted Subsidiaries and Holdings pursuant to a Permitted Acquisition; provided that (A) such Liens were not created in contemplation of such eventPermitted Acquisition and do not extend to any assets other than those of the Person merged into or consolidated with a Borrower or such Subsidiary or acquired by a Borrower or such Subsidiary, and the applicable Indebtedness secured by such Lien is permitted under Section 7.02(vii), and (B) such property shall not be included in the Borrowing Base;
(mxi) any Lien on any asset securing Debt incurred or assumed for the purpose Liens in favor of financing all or any part customs and revenue authorities arising as a matter of the cost law to secure payment of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens customs duties in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, goods in the ordinary course of business;
(pxii) any Liens on licenses or reservations sublicenses (with respect to governmental intellectual property and other licensesproperty), permits, franchises, consents leases or subleases granted to third parties in accordance with any applicable terms of the Collateral Documents and allowances; not interfering in any Liens on patents, patent licenses material respects with the ordinary conduct of the business of the Loan Parties and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwaretheir Subsidiaries;
(qxiii) any (A) interest or title of a lessor or sublessor under any Operating Lease not prohibited by this Agreement, (B) Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any or restrictions that the interest or title of such lessor or sublessor may be subject to or (C) subordination of the foregoinginterest of the lessee or sublessee under such lease to any Lien or restriction referred to in the preceding clause (B), so long as the holder of such Lien or restriction agrees to recognize the rights of such lessee or sublessee under such lease;
(rxiv) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative arising from the filing of precautionary UCC or clerical purposesPPSA financing statements or recordations relating solely to Operating Leases not prohibited by this Agreement;
(sxv) any zoning, building or similar land use law or right reserved to or vested in any Government Authority to control or regulate the use or occupancy of any real property or other activities concluded thereon;
(xvi) Liens securing letters obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into the ordinary course of credit business of the Borrowers and their Subsidiaries;
(xvii) deposits in the ordinary course of business to secure liabilities to insurance carriers, lessors and utilities;
(xviii) Liens in favor of banking institutions encumbering deposits (including the right of set-off) with respect to customary depository agreements entered into in the ordinary course and Liens of businesscollecting banks under Section 4-208 of the UCC on items in the course of collection;
(txix) Liens granted on (A) cash collateral securing Indebtedness permitted under Section 7.02(ix)(A) hereof and (B) insurance policies and the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of unearned premium thereon securing the obligations of such SubsidiariesIndebtedness permitted under Section 7.02(ix)(B);
(uxx) Liens not securing Indebtedness that are deemed to exist pursuant to repurchase agreements relating to dispositions of Cash Equivalents for fair value;
(xxi) Liens incurred by Foreign Subsidiaries (other than Canadian Subsidiaries) and Sacopan on assets of Foreign Subsidiaries (other than Canadian Subsidiaries) and Sacopan securing Indebtedness permitted under Section 7.02(viii)(B);
(xxii) Liens on Receivables and related property sold pursuant to Factoring Arrangements, provided that such Receivables are not included in addition the Borrowing Base;
(xxiii) precautionary Liens and UCC financing statements relating to those permitted Factoring Arrangements not prohibited by clauses this Agreement;
(axxiv) through (t) Liens on cash on deposit with Bank of Nova Scotia existing on the property or assets Effective Date and listed on Schedule 5.08(b) securing contingent obligations of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financingsLoan Parties to reimburse The Bank of Nova Scotia for drawings under letters of credit issued by it prior to the Effective Date and having an aggregate face amount not exceeding $11,878,307;
(vxxv) Liens by securing Indebtedness in an aggregate outstanding principal amount not to exceed 2.5% of Consolidated Total Assets on the date of incurrence; provided that no such Lien shall extend to or cover any Wholly-Owned Subsidiary Collateral included in the Borrowing Base;
(xxvi) other Liens securing Indebtedness permitted under Section 7.02(xvi); provided, that, such liens on any Collateral are subordinated to the Liens of the Borrower or any Restricted Subsidiary Collateral Agent for the benefit of the Borrower or any such Restricted SubsidiarySecured Parties pursuant to intercreditor arrangements reasonably satisfactory to the Collateral Agent;
(wxxvii) Liens arising from financing statement filings under the UCC or similar state or provincial laws regarding goods consigned or entrusted to or bailed with a Person in connection with the processing, reprocessing, recycling or tolling of such goods;
(xxviii) customary restrictions on dispositions of assets to be disposed of pursuant to merger agreements, stock or asset purchase agreements and similar agreements;
(xxix) customary options, put and call arrangements, rights of first refusal and similar rights relating to Equity Interests in joint ventures, partnerships;
(xxx) Liens on goods (and the proceeds thereof) securing Indebtedness permitted under Section 7.02(ix)(A) hereof, arising in connection with reimbursement obligations with respect to any letter of credit, provided, that, no such Lien shall extend to or cover any property or asset other than the goods the purchase of which is supported by such letter of credit and the subject proceeds of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000goods;
(xxxxi) Liens securing Indebtedness permitted under Section 7.02(xvii)(c) hereof on property which is commodity trading accounts or other commodity brokerage accounts incurred in the subject ordinary course of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;business; and
(yxxxii) Liens arising out that are contractual rights of set-off (A) relating to the refinancingestablishment of depository relations with banks not given in connection with the issuance of Indebtedness, extension, renewal (B) relating to pooled deposit or refunding sweep accounts to permit satisfaction of any Debt overdraft or similar obligations incurred in the ordinary course of business or (C) relating to purchase orders and other obligation secured by any Lien permitted by clauses (a) through (x) agreements entered into with its customers in the ordinary course of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 2 contracts
Samples: Credit Agreement (Masonite International Corp), Credit Agreement (Masonite International Corp)
Restriction on Liens. The Borrower will notCreate, nor will it permit any of its Restricted Subsidiaries toassume, create, incur, assume incur or suffer to exist any Lien upon on any Property or with respect to any property or assets asset of any kind (kind, real or personal, tangible or intangible) of the Borrower , now owned or hereafter acquired by it or assign or subordinate any such Restricted Subsidiary (including, without limitation, their Voting Stock), present or future right to receive assets except:
(a) Liens for securing Funded Debt the existence or incurrence of which would not violate the financial covenants of Section 7.9;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet due payable, (B) with respect to Liens securing claims or which demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are being contested in good faith (1) unfiled and no other action has been taken to enforce the same and (2) the cumulative effect of all such Liens will not have a Material Adverse Effect, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its bookssuch Liens, payment is not at the time required;
(bc) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(d) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real propertyproceedings;
(e) Liens existing zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in such Subsidiary or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such assetbusiness; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:and
(nf) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose such Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease to secure obligations of such property Subsidiary solely to the Borrower or assets through one or more other Synthetic Lease financings;
(v) Liens by any a Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (United Dominion Realty Trust Inc), Credit Agreement (United Dominion Realty Trust Inc)
Restriction on Liens. The Borrower will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) any Liens for taxescreated by the this Agreement and all other Loan Documents;
(b) any purchase money security interest on any capital asset of the Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower; provided, that no such purchase money security interest shall extend to or cover any property or asset of the Borrower other than the related asset;
(c) Liens securing Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (i) with respect to Liens securing Taxes, assessments or governmental charges, such Taxes are not yet due payable pursuant to subsection (C)(2) above, or which are being contested in good faith not required to be paid, or (ii) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and by appropriate proceedings the like, such Liens are unfiled and for which adequate reserves in accordance with GAAP shall have no other action has been set aside on its bookstaken to enforce the same;
(bd) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(e) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 heretoproceedings;
(f) judgment Liens arising from judgments zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which secure payment do not materially impair the use of legal obligations that would not constitute a Default under Section 7.01any property in the operation or business of the Borrower or the value of such property for the purpose of such business;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure securing the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations similar items, in an amount not to exceed $2,500,000.00 per bid, bond or other item; and
(h) Liens arising from judgments, interests or title of a like nature incurred lessor, licensor or sublessor under any license or lease agreement pursuant to which rights are granted to Versar; and liens in the ordinary course favor of business by the Borrower customs or any revenue authorities arising as a matter of its Restricted Subsidiaries, including Liens law to secure obligations under agreements relating to the purchase and sale payment of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or customs duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) goods; in an amount of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not $2,500,000.00 at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries outstanding as lessee and to all right, title and interest of the Borrower or any of its Restricted Subsidiaries foregoing in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableaggregate.
Appears in 2 contracts
Samples: Loan and Security Agreement (Versar Inc), Loan and Security Agreement (Versar Inc)
Restriction on Liens. The Borrower Xxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Xxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:the “Permitted Liens”):
(a) Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(b) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies (i) which are not yet due or as to which are the grace period (not to exceed 30 days) has not yet expired or (ii) being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(bc) existing and future Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (i) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are material to the business of Xxxxxxxxx or any of its Subsidiaries and which are the subject of such Lien or materially impair the use thereof in the operation of the business of Xxxxxxxxx or any of its Subsidiaries or (ii) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its books;
(c) Liens arising out the effect of pledges preventing the forfeiture or deposits under worker’s compensation laws, unemployment insurance, old age pensions, sale of the property or other social security or retirement benefits, or similar legislationassets subject to such Lien;
(d) easements Liens arising from judgments, decrees or attachments (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or securing of appeal bonds with respect thereto) in circumstances not recorded) affecting the use constituting an Event of real propertyDefault under Section 8.01;
(e) existing and future Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public any Liens imposed by ERISA or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature pursuant to any Environmental Law) incurred or deposits made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the issuance performance of tax-exempt industrial development or pollution control tenders, statutory obligations, surety bonds or (other than appeal bonds), bids, leases, government contracts, performance and return–of–money bonds and other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, obligations incurred in the ordinary course of business;
(pf) existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title not securing Indebtedness which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of Xxxxxxxxx or any of its Subsidiaries or the value of such property for the purpose of such business;
(g) Liens on or reservations securing (i) the secured Indebtedness permitted to be incurred under Section 7.01(d)(i) and (ii) Purchase Money Indebtedness permitted to be incurred under Section 7.01(e); provided that, with respect to governmental and clause (ii), such Lien does not at any time encumber any property other licenses, permits, franchises, consents and allowances; any than the property financed by such Indebtedness (except for the products or proceeds of the assets subject to such Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareto the extent provided by the terms thereof at the time such Liens are granted);
(qh) any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of Xxxxxxxxx; provided that (i) such Liens on automobiles, buses, trucks were not created in contemplation of such event and (ii) such Liens do not extend to any assets other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any than those affected thereby prior to such event (except for the products or proceeds of the foregoingassets subject to such Liens to the extent provided by the terms thereof on the date of such event);
(ri) any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens were not created in contemplation of such event and (ii) such Liens do not extend to any assets other than those affected thereby prior to such event (except for the products or proceeds of the assets subject to such Liens to the extent provided by the terms thereof on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposesthe date of such event);
(sj) any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens securing letters were not created in contemplation of credit entered into such event and (ii) such Liens do not extend to any assets other than those affected thereby prior to such event (except for the products or proceeds of the assets subject to such Liens to the extent provided by the terms thereof on the date of such event);
(k) existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set–off or similar rights, in each case incurred in the ordinary course of business;
(tl) Liens granted on any provision of Cash Collateral pursuant to the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiariesterms hereof;
(um) Liens in addition to those arising from precautionary uniform commercial code financing statements filed under any lease permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financingsthis Agreement;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yn) Liens arising out of conditional sale, title retention, consignment or similar arrangements entered into by Xxxxxxxxx or any of its Subsidiaries in the refinancing, extension, renewal or refunding ordinary course of any Debt or business; and
(o) Liens other obligation secured by any Lien than those permitted by clauses clause (a) through clause (xn) of this Section; provided, that such Debt Section 7.02 on property or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower Xxxxxxxxx and its Subsidiaries now owned or hereafter acquired by it, or on any income or rights in respect thereof, not in excess of fifteen percent (15%) of Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 2 contracts
Samples: Credit Agreement (Carpenter Technology Corp), Credit Agreement (Carpenter Technology Corp)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) with respect to PPL Interstate Energy Company, any Liens other than Liens securing Debt of PPL Interstate Energy Company;
(q) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qr) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(rs) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(st) Liens securing letters of credit entered into in the ordinary course of business;
(tu) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uv) Liens in addition to those permitted by clauses (a) through (tu) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(vw) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(wx) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(xy) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yz) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (xy) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zaa) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 2 contracts
Samples: Credit Agreement (PPL Montana LLC), Credit Agreement (PPL Montana LLC)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(a) (i) any Lien on any property in connection with a Sale and Leaseback Transaction permitted by Section 5.10, (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary and not created in anticipation of such acquisition, which acquisition is not otherwise prohibited by this Agreement, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not attach to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.11 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out any Lien securing Debt of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Subsidiary owing to a Subsidiary Guarantor;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting any Lien created by the use of real propertyLoan Documents;
(e) Liens existing on any Lien created by the Closing Date Senior Loan Documents; provided that (i) with respect to any specific Collateral which is also Senior Collateral, a Lien is created simultaneously under the Second Priority Collateral Documents and described in Schedule 6.07 heretois subject to the Collateral Trust and Intercreditor Agreement and (ii) the aggregate principal amount of Senior Debt Obligations to be secured by such Lien shall not exceed the amount permitted by Section 6.02 of the Collateral Trust and Intercreditor Agreement;
(f) judgment Liens arising from judgments which secure payment any Lien under the Exchange Debt First Priority Collateral Documents in favor of legal obligations the Exchange Debt Parties, provided that would not constitute a Default under Section 7.01such Lien is limited to the Exchange Debt First Priority Collateral;
(g) any vendor’s LiensLien under the PCS Pledge Agreement and the Xxxxxxxxx.xxx Pledge Agreement in favor of the Existing Facility Parties and the Synthetic Lease Parties, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no provided that such Lien shall extend is limited to or cover any other asset of the Borrower or "Collateral" as such Restricted Subsidiaries, as the case may beterm is defined in each such document;
(h) Liens, deposits and/or similar arrangements existing Liens under the Synthetic Lease Documents and Liens under Synthetic Leases permitted pursuant to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)Section 5.25;
(i) Liens identified on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties Schedule 5.11(i); provided, however, that such Liens do not attach to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.other property other than that identified in such Schedule;
(j) rights reserved Liens in respect of Debt or Attributable Debt permitted under Sections 5.16(f), (g), (h), (i) and (j) so long as such Liens attach only to (i) the equipment subject to such financing, (ii) the property to which they attach on the Closing Date (or vested in the case of any municipality operating lease which is reclassified as a Capital Lease, any property subject to such lease on the Closing Date), or public authority to control (iii) the property or regulate any asset of the Borrower assets constructed, developed or any of its Restricted Subsidiaries or to use purchased with such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;financing; and
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset Net Cash Proceeds of any corporation or other entity existing at Reduction Events allocated to the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created Exchange Note Obligations in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection accordance with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued Collateral Trust and Intercreditor Agreement, which Lien arises pursuant to Section 103(b) 10.14 of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableExchange Note Indenture.
Appears in 2 contracts
Samples: RCF Facility Agreement (Rite Aid Corp), PCS Facility Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower will notSo long as any Securities are -------------------- Outstanding, nor will it permit any of its Restricted Subsidiaries to, the Issuer shall not create, incur, issue, or assume or suffer to exist any Lien upon or with respect to Indebtedness (as defined below) secured after the date hereof by any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary security interest (including, without limitation, their Voting Stock)any mortgage, except:
(apledge, encumbrance, lien or charge of any kind) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in any property of the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements Issuer (including, without limitation, reciprocal easement agreements property of the Issuer consisting of any share or shares of capital stock or indebtedness owed to the Issuer by any subsidiary of the Issuer) whether such property, shares or indebtedness are owned by the Issuer at the date of this Indenture or thereafter acquired, without effectively providing concurrently with the creation, incurrence, issuance or assumption of such Indebtedness or the time when such Indebtedness is permitted or suffered to exist that the Securities (together with, if the Issuer shall so determine, any other indebtedness of the Issuer ranking equally with the Securities and utility agreements)then existing or thereafter created) shall be secured equally and ratably with (or prior to) the Indebtedness so created, rights-of-wayincurred, covenantsissued or assumed; provided, consentshowever, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or that the foregoing shall not recorded) affecting the use of real property;apply to:
(ea) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien security interests on any property acquired, constructed or asset improved by the Issuer or on any shares of capital stock or indebtedness of any subsidiary acquired by the Borrower or any of its Restricted Subsidiaries Issuer after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements this Indenture to secure the performance payment of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of such property, shares of capital stock or indebtedness upon the acquisition thereof by the Issuer or within 270 days thereafter, or to secure payment of all or any part of the cost of constructingsuch construction or improvements as they are incurred or within 270 days thereafter, equipping and provided that, in the case of any such acquisition, construction or improving propertyimprovement, such security interest does not apply to any property or shares of capital stock or indebtedness theretofore owned by the Issuer, other than, in the case of any such construction or improvement, any real property on which the property is so constructed or the improvement is located;
(ob) rights security interests on any property, shares of lessees arising under leases entered into capital stock, or indebtedness which security interests exist at the time of acquisition of such property, shares or indebtedness by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessIssuer;
(pc) security interests on any Liens on property of a corporation or reservations other Person, which interests exist at the time such corporation is merged with respect or into or consolidated with the Issuer or which interests exist at the time of a sale or transfer of the properties of such corporation or other Person as an entirety or substantially as an entirety to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwarethe Issuer;
(qd) security interest in favor of the United States of America or any Liens State thereof, or of any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country or political subdivision, (A) to secure partial progress, advance or other payments pursuant to any contract or statute, (B) to secure any indebtedness incurred or guaranteed for the purpose of financing or refinancing all or any part of the purchase price of the property, shares of capital stock or indebtedness subject to such security interests, or (C) to secure the cost of constructing or improving the property subject to such security interests (including, without limitation, security interests incurred in connection with pollution control, industrial revenue or similar financings);
(e) security interests on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used any property arising in connection with any defeasance, covenant defeasance or in substance defeasance of the foregoingany Indebtedness pursuant to express contractual provision with respect thereto or generally accepted accounting principles;
(rf) security interests on any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries any corporation which is registered in the name of the Issuer or otherwise owned by or held for the purpose benefit of securing the obligations Issuer which may constitute "margin stock" as such term is defined in Section 207.2(i) of such Subsidiaries;Title 12 of the Code of Federal Regulations (or any successor provisions); and
(ug) Liens any extension, renewal or replacement (or successive extensions, renewals or replacements) in addition whole or in part of any security interest referred to those permitted by in the foregoing clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all rightf), title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a securityinclusive; provided, however, that the aggregate fair market value principal amount of the obligations subject to such Liens Indebtedness secured thereby shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject original principal amount of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee Indebtedness and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to that such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding replacement shall be limited to all or a part of any Debt the property (plus improvements and construction on such property), shares of capital stock or other obligation indebtedness which was subject to the security interest so extended, renewed or replaced. Notwithstanding the foregoing provisions of this Section, the Issuer may, without equally and ratably securing the Securities, create, incur, issue or assume, Indebtedness secured by any Lien permitted security interest not excepted by clauses the foregoing Clauses (a) through (x) g), if the aggregate amount of this Section; providedsuch Indebtedness, that together with all other Indebtedness of the Issuer existing at such Debt or other obligation is not increased time and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiariessecurity interests not so excepted, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 1510% of the total consolidated assets of the Borrower and its Issuer's Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Assets at such time.
Appears in 1 contract
Restriction on Liens. The Borrower will Without, in each instance, the prior -------------------- written consent of the Administrative Agent and each of the Lenders, which consent may be given or withheld in their respective sole and absolute discretions and, if given, under such conditions as each of the Lenders and the Administrative Agent, in their respective sole and absolute discretions, may believe to be appropriate under the circumstances then-existing, the Company shall not, nor will it and shall not permit any of its Restricted Subsidiaries to, whether directly or indirectly, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock)attachments, except:judgments or executions) upon all or any portion of the Collateral or upon all or any portion of its or its Subsidiaries' respective other Properties, whether now owned or hereafter acquired, except ------ for: ---
(a) Liens created by or pursuant to the Security Documents;
(b) Liens in existence on the date hereof and listed in Part B of Schedule 7.12 hereto securing Indebtedness permitted by Section 8.07(b); ------------- provided, however, that (i) no such Lien may be extended after the Closing Date -------- ------- to cover any additional Property and (ii) the Indebtedness secured thereby also may not be increased after the Closing Date;
(c) Liens imposed by any Governmental Authority for taxes, assessments or governmental charges or levies not yet due or which that are being contested in good faith and by appropriate proceedings and for which proceedings; provided, however, that adequate reserves or security deposits with -------- ------- respect thereto are maintained on the books of the Company or the affected Subsidiary, as the case may be, in accordance with GAAP shall have been set aside on its booksGAAP;
(bd) Liens imposed by law, such as carriers’, landlords’', warehousemen’s and 's, mechanics’ liens and ', materialmen's, repairmen's or other similar liens like Liens arising in the ordinary course of business which secure payment of obligations that are not more than 45 days past yet due or which that are being contested in good faith and by appropriate proceedings and for which proceedings; provided, however, that (i) adequate reserves or security deposits -------- ------- with respect thereto are maintained on the books of the Company or the affected Subsidiary, as the case may be, in accordance with GAAP shall have been set aside on its books;
GAAP, and (cii) such Liens arising out of pledges are at all times subordinate to the Liens created by or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting pursuant to the use of real propertySecurity Documents;
(e) Liens existing on created after the Closing Date date hereof to secure Indebtedness permitted by Section 8.07(e) below, and described in Schedule 6.07 hereto;
Liens upon real and/or tangible personal Property permitted to be acquired under Section 8.05(b) above and acquired after the date hereof (f) judgment by purchase, construction or otherwise, and including Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(gpursuant to capital leases) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower Company or any of its Restricted Subsidiaries after the date hereof existing Subsidiaries, each of which Liens either (i) existed on any such property or asset at Property before the time of its acquisition thereof (and was not created in anticipation thereof)thereof or (ii) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of such Property; provided, thathowever, in any such case that (A) no such Lien shall extend to or cover -------- ------- any other asset Property of the Borrower Company or such Restricted SubsidiariesSubsidiary other than the Property so acquired and improvements thereon and (B) the principal amount of Indebtedness secured by any such Lien shall at no time exceed the lesser of $50,000.00 or the fair market value (as determined in good faith by a senior financial officer of the Company) of such Property at the time it was acquired (by purchase, as the case may beconstruction or otherwise);
(hf) Liensdeposits in connection with workers' compensation, unemployment insurance and other social security legislation;
(g) deposits and/or similar arrangements by or on behalf of the Company or any of its Subsidiaries to secure the performance of bids, tenders or trade contracts (other than contracts for borrowed money), public or statutory obligationsleases, surety and appeal bonds, performance bonds service contracts and other contractual obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);business; and
(ih) Liens on assets of the Borrower recorded easements, rights-of-way and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchisecovenants, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries conditions and not created in contemplation of such event;
(m) any Lien on any asset securing Debt restrictions incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) business that do not provide for the creation or imposition of monetary Liens and which in any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but case do not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any materially detract from the value of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Property subject thereto or clerical purposes;
(s) Liens securing letters of credit entered into in materially interfere with the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary conduct of the Borrower or any Restricted Subsidiary for the benefit business of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower Company or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Liens described in any of the following clauses (collectively, “Permitted Liens”):
(i) Liens existing on the Closing Date and listed on Schedule 7.02 and any modifications, refinancings, replacements, substitutions renewals or extensions thereof; provided that (A) any such Restricted Subsidiary modification, refinancing, replacement, substitution, renewal or extension of any such Lien does not extend to any additional property other than (includingx) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01, without limitation(y) proceeds and products thereof and (z) after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their Voting Stockterms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), except:and (B) the refinancing, replacement, substitution, modification, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(aii) Liens created by the Collateral Documents securing the Finance Obligations;
(iii) Liens for taxesTaxes, assessments or and other governmental charges or levies not yet due or (A) which are being contested in good faith and by appropriate proceedings and not overdue for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course a period of business which secure payment of obligations not more than 45 sixty (60) days past due or (B) which are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established in accordance with GAAP;
(iv) Liens imposed by Law securing the charges, claims, demands or levies of landlords, carriers, suppliers, warehousemen, materialmen, workmen, mechanics, carriers and other like Liens imposed by Law which were incurred in the Ordinary Course of Business and which (A) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries, (B) are otherwise being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such Lien or (C) secure amounts not overdue for a period of more than sixty (60) days;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the Ordinary Course of Business;
(vi) Liens and deposits securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or judgments), customs bonds, statutory obligations to Governmental Authorities, utilities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the Ordinary Course of Business for sums not more than ninety (90) days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP shall GAAP, which proceedings for orders entered in connection with such proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property subject to any such Lien;
(cvii) pledges or deposits of cash and Cash Equivalents securing deductibles, self- insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the Ordinary Course of Business;
(viii) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(ix) Liens arising out solely by virtue of pledges any contract, statutory or deposits under workercommon Law provision, in each case relating to banker’s compensation lawsliens, unemployment insurance, old age pensions, or other social security or retirement benefits, rights of setoff or similar legislationrights, in each case incurred in the Ordinary Course of Business, including Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(dx) easements licenses permitted pursuant to Section 7.05(xiii);
(includingxi) municipal ordinances, without limitationeasements, reciprocal easement agreements and utility agreements)rights of way, rights-of-waylicenses, reservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real propertyproperty or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Subsidiaries or the value of such property for the purpose of such business;
(exii) Liens existing on the Closing Date arising from precautionary UCC financing statements regarding, and described in Schedule 6.07 heretoany interest or title of a licensor under any license or a lessor or sublessor under, Operating Leases not prohibited by this Agreement;
(fxiii) judgment Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with court proceedings or judgments which secure payment with respect thereto) in circumstances not constituting an Event of legal obligations that would not constitute a Default under Section 7.018.01(g);
(gxiv) Liens securing Indebtedness permitted to be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date; provided that individual financings of equipment provided by one lender may be cross- collateralized to other financings of equipment provided by such lender), and Section 7.01(iii) (so long as such Liens attach to the property or asset so financed within 270 days of the related incurrence of Indebtedness) and Section 7.01(vi) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced, provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender) and which does not extend to any assets other than those of such Person;
(xv) any vendor’s Liens, purchase money Liens Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvi) any other Lien on any property asset (other than on the Equity Interests of one or more Subsidiaries of the Borrower) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvii) any Lien existing on any asset acquired (other than on the Equity Interests of one or more Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xviii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on in connection with any such property letter of intent or asset at the time of acquisition thereof (and not created in anticipation thereof); providedpurchase agreement with respect to a Permitted Acquisition, that, in any such case no such Lien shall extend to an Investment permitted by Section 7.06 or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may bea Permitted Joint Venture;
(hxix) Liens, deposits and/or similar arrangements Liens in favor of customs and revenue authorities arising as a matter of Law to secure the performance payment of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or customs duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) goods in the Ordinary Course of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyBusiness;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yxx) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the refinancing, extension, renewal or refunding sale of any Debt or other obligation secured goods entered into by any Lien permitted by clauses (a) through (x) Group Company in the Ordinary Course of this Section; provided, that Business in accordance with past practices of such Debt or other obligation is not increased and is not secured by any additional assetsGroup Company;
(zxxi) licenses or leases of the properties of any Group Company, and the rights of ordinary-course lessees described in Section 9-321 of the UCC, in each case entered into in the Ordinary Course of Business of such Group Company so long as such licenses or leases and rights do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Group Company or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xxii) Liens which may arise as a result of municipal and zoning codes and ordinances, building and other land use laws imposed by any Governmental Authority which are not violated in any material respect by existing improvements or the present use or occupancy of any Real Property, or in the case of any Mortgaged Property, encumbrances disclosed in the title insurance policy issued to, and reasonably approved by, the Collateral Agent;
(xxiii) (A) in connection with any disposition or license not prohibited by Section 7.05, customary rights and restrictions contained in agreements relating to such disposition pending the completion thereof (or in the case of a license, during the term thereof), and (B) any option or other agreement to dispose or license any asset provided that such disposition or license is permitted under Section 7.05;
(xxiv) in the case of (A) any Subsidiary that is not a Wholly Owned Subsidiary or (B) the Equity Interests in any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth in the Organization Documents of such Subsidiary or such other Person or any related joint venture, shareholders’, investors’ rights or similar agreement;
(xxv) Liens on the assets of Foreign Subsidiaries that secure only Indebtedness or other obligations of such Foreign Subsidiaries permitted hereunder; and
(xxvi) [Reserved]
(xxvii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000 at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Teladoc, Inc.)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Liens described in any of the following clauses (collectively, “Permitted Liens”):
(i) Liens existing on the Closing Date and listed on Schedule 7.02 and any modifications, refinancings, replacements, substitutions renewals or extensions thereof; provided that (A) any such Restricted Subsidiary modification, refinancing, replacement, substitution, renewal or extension of any such Lien does not extend to any additional property other than (includingx) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01, without limitation(y) proceeds and products thereof and (z) after-acquired property subject to a Lien securing Indebtedness and other obligations incurred prior to such time and which Indebtedness and other obligations are permitted hereunder that require, pursuant to their Voting Stockterms at such time, a pledge of after-acquired property, it being understood that such requirement shall not be permitted to apply to any property to which such requirement would not have applied but for such acquisition), except:and (B) the refinancing, replacement, substitution, modification, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(aii) (x) Liens created by the Collateral Documents securing the Finance Obligations and (y) Liens on Collateral securing Permitted Equal Priority Refinancing Debt and/or Permitted Junior Priority Refinancing Debt;
(iii) Liens for taxesTaxes, assessments or and other governmental charges or levies not yet due or (A) which are being contested in good faith and by appropriate proceedings and not overdue for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course a period of business which secure payment of obligations not more than 45 sixty (60) days past due or (B) which are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established in accordance with GAAP;
(iv) Liens imposed by Law securing the charges, claims, demands or levies of landlords, carriers, suppliers, warehousemen, materialmen, workmen, mechanics, carriers and other like Liens imposed by Law which were incurred in the Ordinary Course of Business and which (A) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries, (B) are otherwise being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such Lien or (C) secure amounts not overdue for a period of more than sixty (60) days;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the Ordinary Course of Business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the Ordinary Course of Business;
(vi) Liens and deposits securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or judgments), customs bonds, statutory obligations to Governmental Authorities, utilities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the Ordinary Course of Business for sums not more than ninety (90) days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP shall GAAP, which proceedings for orders entered in connection with such proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property subject to any such Lien;
(cvii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the Ordinary Course of Business;
(viii) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(ix) Liens arising out solely by virtue of pledges any contract, statutory or deposits under workercommon Law provision, in each case relating to banker’s compensation lawsliens, unemployment insurance, old age pensions, or other social security or retirement benefits, rights of setoff or similar legislationrights, in each case incurred in the Ordinary Course of Business, including Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(dx) easements licenses permitted pursuant to Section 7.05(xvi);
(includingxi) municipal ordinances, without limitationeasements, reciprocal easement agreements and utility agreements)rights of way, rights-of-waylicenses, reservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real propertyproperty or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Subsidiaries or the value of such property for the purpose of such business;
(exii) Liens existing on the Closing Date arising from precautionary UCC financing statements regarding, and described in Schedule 6.07 heretoany interest or title of a licensor under any license or a lessor or sublessor under, Operating Leases not prohibited by this Agreement;
(fxiii) judgment Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with court proceedings or judgments which secure payment with respect thereto) in circumstances not constituting an Event of legal obligations that would not constitute a Default under Section 7.018.01(g);
(gxiv) Liens securing Indebtedness permitted to be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date; provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender), Section 7.01(iii) (so long as such Liens attach to the property or asset so financed within 180 days of the related incurrence of Indebtedness) and Section 7.01(vi) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced, provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender) and which does not extend to any assets other than those of such Person;
(xv) any vendor’s Liens, purchase money Liens Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvi) any other Lien on any property asset (other than on the Equity Interests of one or more Subsidiaries of the Borrower) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvii) any Lien existing on any asset acquired (other than on the Equity Interests of one or more Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xviii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries after in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture and licenses and sublicenses permitted under Section 7.05(xvi)(A), to the date hereof existing on any extent such property or asset at the time of acquisition thereof (licenses and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may besublicenses constitute a Lien;
(hxix) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (a) Liens on cash and Cash Equivalents securing Swap Obligations and (b) Liens (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in on the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(iCollateral) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset securing Swap Obligations of the Borrower or any Subsidiary of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or under Swap Agreements permitted hereunder, in each case to the extent entered into with a financial institution that is not a Swap Creditor in order to manage interest rate, foreign currency exchange rate and commodity pricing risks and not for speculative purposes and in an aggregate amount for preceding clauses (a) and (b) not to exceed […***…] at any of its Restricted Subsidiariestime outstanding;
(kxx) irregularities Liens in or deficiencies favor of title customs and revenue authorities arising as a matter of Law to any asset which do not materially adversely affect the use secure payment of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens customs duties in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) goods in the Ordinary Course of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyBusiness;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yxxi) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the refinancing, extension, renewal or refunding sale of any Debt or other obligation secured goods entered into by any Lien permitted by clauses (a) through (x) Group Company in the Ordinary Course of this Section; provided, that Business in accordance with past practices of such Debt or other obligation is not increased and is not secured by any additional assetsGroup Company;
(zxxii) licenses or leases of the properties of any Group Company, and the rights of ordinary-course lessees described in Section 9-321 of the UCC, in each case entered into in the Ordinary Course of Business of such Group Company so long as such licenses or leases and rights do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Group Company or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xxiii) Liens which may arise as a result of municipal and zoning codes and ordinances, building and other land use laws imposed by any Governmental Authority which are not violated in any material respect by existing improvements or the present use or occupancy of any Real Property, or in the case of any Mortgaged Property, encumbrances disclosed in the title insurance policy issued to, and reasonably approved by, the Collateral Agent;
(xxiv) (A) in connection with any disposition or license not prohibited by Section 7.05, customary rights and restrictions contained in agreements relating to such disposition pending the completion thereof (or in the case of a license, during the term thereof), and (B) any option or other agreement to dispose or license any asset provided that such disposition or license is permitted under Section 7.05;
(xxv) in the case of (A) any Subsidiary that is not a Wholly Owned Subsidiary or (B) the Equity Interests in any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth in the Organization Documents of such Subsidiary or such other Person or any related joint venture, shareholders’, investors’ rights or similar agreement;
(xxvi) Liens on the assets of Foreign Subsidiaries that secure only Indebtedness or other obligations of such Foreign Subsidiaries permitted hereunder; and
(xxvii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available[…***…] at any time outstanding.
Appears in 1 contract
Restriction on Liens. The Neither the Borrower will not, nor will it permit any of its Restricted Subsidiaries to, will create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) of including the Borrower or any such Restricted Subsidiary of the Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the UCC of any jurisdiction of a financing statement that names the Borrower or any of its Restricted Subsidiaries as debtor, or sign any security agreement authorizing any secured party thereunder to file such a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or and other governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(bA) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 that 90 days past due or delinquent, (B) which are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established in accordance with GAAP which proceedings have the effect of preventing or delaying the forfeiture or sale of the property or assets subject to such Lien or (C) which are not otherwise required to be paid in accordance with Section 6.04;
(iv) Liens imposed by Law securing the charges, claims, demands or levies of landlords, carriers, suppliers, warehousemen, materialmen, workmen, mechanics, carriers and other like Liens imposed by Law which were incurred in the ordinary course of business and which (A) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (B) which are not for sums overdue or are otherwise being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or judgments), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP shall GAAP, which proceedings for orders entered in connection with such proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property subject to any such Lien;
(cvii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;
(viii) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(ix) Liens arising out solely by virtue of pledges any contract, statutory or deposits under workercommon Law provision, in each case relating to banker’s compensation lawsliens, unemployment insurance, old age pensions, or other social security or retirement benefits, rights of setoff or similar legislationrights, in each case incurred in the ordinary course of business;
(dx) easements licenses, sublicenses, leases or subleases of the properties of any Loan Party granted by such Loan Party to third parties or Affiliates, in each case entered into in the ordinary course of such Loan Party’s business so long as such licenses, sublicenses, leases or subleases do not, individually or in the aggregate, (includingi) interfere in any material respect with the ordinary conduct of the business of any Loan Party or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xi) zoning restrictions, without limitationbuilding codes, reciprocal easement agreements land use and utility agreements)other similar Laws and municipal ordinances, rights-of-easements, rights of way, licenses, reservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real propertyproperty or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Subsidiaries or the value of such property for the purpose of such business;
(exii) Liens existing on the Closing Date arising from precautionary UCC financing statements regarding, and described in Schedule 6.07 heretoany interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(fxiii) judgment Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xiv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with courts proceedings or judgments which secure payment with respect thereto) in circumstances not constituting an Event of legal obligations that would not constitute a Default under Section 7.018.01;
(gxv) Liens securing Indebtedness permitted to be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date), Section 7.01(iii) (so long as such Liens attach to the property or asset so financed within 180 days of the related incurrence of Indebtedness), Section 7.01(iv), Section 7.01(vi) (other than with respect to Indebtedness incurred under Section 7.01(v)) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced) and which does not extend to any assets other than those of such Person;
(xvi) any vendor’s Liens, purchase money Liens or Lien existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person;
(xvii) any Lien on any property asset (other than on the Equity Interests of one or more Restricted Subsidiaries of the Borrower) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person;
(xviii) any Lien existing on any asset acquired (other than on the Equity Interests of one or more Restricted Subsidiaries of the Borrower) prior to the acquisition thereof by the Borrower or a Restricted Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xix) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries after the date hereof existing in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture;
(xx) Liens on cash and Cash Equivalents securing Swap Obligations;
(xxi) Liens on (1) any such property or asset at the time assets of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset a Foreign Subsidiary of the Borrower or that is a Restricted Subsidiary and (2) Liens on any Equity Interests of a Foreign Subsidiary of the Borrower that is a Restricted Subsidiary not constituting Collateral, in each case securing Indebtedness of such Foreign Subsidiary that is a Restricted Subsidiaries, as the case may beSubsidiary incurred pursuant to Section 7.01(xii);
(hxxii) Liens, deposits and/or similar arrangements Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the performance importation of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred goods in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ixxiii) Liens that might be deemed to exist on assets subject to a repurchase agreement constituting a Cash Equivalent permitted hereunder, if such Liens are deemed to exist solely because of the Borrower and its Restricted Subsidiaries existence of such repurchase agreement;
(xxiv) Liens arising out of obligations conditional sale, title retention, consignment or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset similar arrangements for the purposes for which it is held by the Borrower or any sale of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property goods entered into by the Borrower or any of its Restricted Subsidiaries in the normal ordinary course of its business;
(l) any Lien on any property or asset business in accordance with past practices of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(wxxv) Receipt of progress payments and advancements from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;
(xxvi) Liens securing Indebtedness incurred in reliance on Sections 7.01(xx) and (xxi); and
(xxvii) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that assets securing obligations if the aggregate fair market value amount of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation liabilities secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens thereby does not exceed the greater of $250,000,000 50,000,000 or 15% of the total consolidated assets Consolidated EBITDA on a Pro Forma Basis of the Borrower and its Consolidated Subsidiaries as for the four-quarter period in respect of the most recent fiscal quarter of the Borrower for which financial statements are availablehave been delivered ended immediately prior to the date of such determination at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Medassets Inc)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Consolidated Subsidiaries to, create, incur, assume or suffer to exist be created, assumed or incurred or to exist, any Lien upon or with respect to any of their property or assets, whether now owned or hereafter acquired other than:
(a) Liens against assets of any kind (real or personal, tangible or intangible) of the Borrower or any a Consolidated Subsidiary securing Debt of such Restricted Subsidiary Person, so long as (includingi) the aggregate amount of all such secured Debt does not exceed $5,000,000, without limitation, their Voting Stockand (ii) such secured Debt is otherwise permitted by Section 6.02(a)(v), except:in the case of the Borrower, or Section 6.02(a)(iv), in the case of a Consolidated Subsidiary;
(ab) Liens imputed to Capital Leases under which a Consolidated Subsidiary is the lessee, so long as the Debt of such Consolidated Subsidiary in respect of such Capital Lease is permitted by Section 6.02(a)(iv);
(c) Liens on property of any Consolidated Subsidiary that attach concurrently with such Consolidated Subsidiary’s purchase thereof, and securing only Debt of such Consolidated Subsidiary permitted by Section 6.02(a)(iv) and incurred to finance all or part of the purchase price of such property, and any extensions and renewals of such Liens so long as the Debt secured thereby is not greater than the Debt secured immediately prior to such extension and renewal and such Debt is permitted by Section 6.02(a)(iv) at the time of such extension and renewal;
(d) Liens for taxes, assessments or governmental charges or levies if the same shall at the time not yet due be delinquent or thereafter may be paid without penalty, or the validity of which are being contested in good faith and by appropriate proceedings promptly initiated and for diligently conducted and as to which adequate reserves in accordance with GAAP shall have been set aside on its booksthe books of the Borrower in accordance with GAAP;
(be) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising Liens which arise in the ordinary course of business which business, do not materially impair the use or value of its properties or assets or the conduct of its business, and secure payment of obligations that are not more than 45 days past yet due and payable or which are being contested in good faith by appropriate proceedings promptly initiated and for diligently conducted and as to which adequate reserves in accordance with GAAP shall have been set aside on its booksthe books of the Borrower in accordance with GAAP or as to which adequate bonds shall have been obtained;
(cf) Liens arising out of pledges or deposits to secure obligations under workerworkmen’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, laws or similar legislationlegislation or to secure public or statutory obligations of the Borrower;
(dg) easements Liens created in favor of a Governmental Authority to secure partial, progress, advance or other contractual payments pursuant to any agreement or statute;
(includingh) attachment, without limitationjudgment and other similar Liens arising in connection with court proceedings, reciprocal easement agreements provided the execution or other enforcement of such Liens is effectively stayed and utility agreements)the claims secured thereby are being actively contested in good faith and by appropriate proceedings in such manner as not to have the property subject to such Liens forfeitable;
(i) easements, rights-of-way, covenants, consents, reservations, exceptions, minor encroachments, variances restrictions and other restrictions, similar charges created or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by which in the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to aggregate do not materially interfere with the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets business operations of the Borrower and its Restricted Subsidiaries arising out taken as a whole, and which were not incurred in connection with the borrowing of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.money;
(j) rights reserved Liens of financial institutions on accounts or deposits maintained therein to the extent arising by operation of law or vested in any municipality within the documentation establishing said account to the extent same secure charges, fees and expenses owing or public authority potentially owing to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;said institution; and
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial from precautionary UCC financing statements are availableregarding operating leases.
Appears in 1 contract
Samples: Second Amended and Restated Credit Agreement (Kirby Corp)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(i) Any Lien on any property acquired or constructed by the Borrower or a Subsidiary and created contemporaneously with, or within 24 months after, such acquisition or the completion of such construction and commencement of full operation of such property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such property, or (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not spread to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.10 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Borrower or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Wholly-Owned Consolidated Subsidiary;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges Any Lien created by the Loan Documents or encumbrances (whether or not recorded) affecting the use of real property;1999 Loan Documents; and
(e) Liens existing on Secured Debt of the Closing Date Borrower and described its Subsidiaries which would otherwise be prohibited by the foregoing restrictions (not including Secured Debt permitted to be secured under subsections (a) through (d) above) so long as the sum of any such Secured Debt hereafter incurred and outstanding at the time plus Attributable Debt of the Borrower and any Subsidiaries in Schedule 6.07 hereto;
respect of Sale and Leaseback Transactions hereafter entered into and outstanding at the time (fexcluding Attributable Debt incurred in respect of any Sale and Leaseback Transaction (i) judgment Liens arising from judgments which secure payment entered into in respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after a Subsidiary not more than 24 months prior to the date hereof existing on any such property Sale and Leaseback Transaction is entered into or asset at (ii) if the time Borrower, within 120 days before or after such Sale and Leaseback Transaction is entered into applies an amount equal to the greater of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset A) the net proceeds of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property so sold and leased back or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or (B) the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such property at the obligations subject date such arrangement is entered into to such Liens shall not the retirement of Secured Debt (other than at maturity or pursuant to any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of owed to the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens a Wholly-Owned Consolidated Subsidiary) does not at the time exceed the greater of $250,000,000 or 155% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Tangible Assets.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:"Permitted Liens"):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , sellers of goods, carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which (A) secure payment of obligations charges, claims, demands, or levies which are not more than 45 30 days past due overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (C) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $5,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(dv) easements Liens (includingother than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances unemployment insurance and other restrictions, charges or encumbrances (whether or not recorded) affecting types of social security and other similar obligations incurred in the use ordinary course of real propertybusiness;
(evi) Liens existing on the Closing Date and described (including pledges or deposits) securing obligations in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts surety bonds (other than contracts for borrowed moneyappeal bonds), bids, trade contracts, public or statutory obligations, surety and appeal bondsleases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) Liens pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on assets the ordinary cause of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jviii) zoning restrictions, building codes, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lix) Permitted Encumbrances;
(x) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01(iii) and Liens securing Debt of Foreign Subsidiaries permitted under Section 7.01 (xviii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or license entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries;
(xxi) Liens existing on the Closing Date and listed on Schedule 7.02 hereto; provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Holdings and its Subsidiaries (other than accessions to and the proceeds of the property or property assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person's obligations in respect of bankers' acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods; and
(xxiv) Liens on deemed to exist in the Voting Stock of ordinary course in connection with Cash Equivalents; and
(xxv) other Liens incurred by the Borrower in and its Restricted Subsidiaries, so long as Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind Person, including any Subsidiary of Holdings) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such a financing statement, except that the Company and its Subsidiaries (real and in the case of clause (ii) below only, Holdings and its Subsidiaries) may create, incur, assume or personal, tangible or intangible) permit to exist Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien and (y) proceeds and products thereof and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens arising under the Collateral Documents;
(iii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Company or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP shall GAAP, which proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, public or statutory obligations, surety and appeal bonds, performance bonds unemployment insurance and other types of social security and other similar obligations of a like nature incurred in the ordinary course of business by business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the Borrower ordinary course of business; provided that in the case of Liens on cash and Cash Equivalents, the amount of all cash and Cash Equivalents subject to such Liens may at no time exceed $250,000 in the aggregate;
(vii) Liens upon specific items or inventory or other goods and proceeds of the Company or any of its Restricted Subsidiaries, including Liens Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to secure obligations under agreements relating to facilitate the purchase and sale shipment or storage of any commodity (including power purchase and sale agreements, any commodity hedge such inventory or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)other goods;
(iviii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance in the ordinary cause of business;
(ix) Liens on assets (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to clause (a)(x) of the Borrower and its Restricted Subsidiaries arising out definition of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.Permitted Indebtedness;
(jx) Liens arising solely by virtue of any statutory or common Law provision relating to banker’s liens, rights reserved of set-off or similar rights, in each case incurred in the ordinary course of business;
(xi) licenses, leases or subleases granted to or vested third Persons in the ordinary course of business not interfering in any municipality material respect with the business of any Group Company;
(xii) zoning restrictions, building codes, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or public authority to control other minor encumbrances or regulate any asset irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lxiii) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or other property (other than proceeds of insurance payable by reason of such judgments, decrees or attachments) the fair value of which exceeds $250,000 is deposited or delivered to secure any such judgment, decree or award, or any appeal bond in respect thereof;
(xv) Liens securing Indebtedness permitted to be incurred under clause (a)(i) (limited solely to ABL Priority Collateral) and clauses (ii), (v) and (vi) of the definition of “Permitted Indebtedness”;
(xvi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries Company and not created in contemplation of such event;
(mxvii) any Lien on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) of any Person existing at the purpose of financing all time such Person is merged or any part consolidated with or into the Company or a Subsidiary of the cost Company and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxviii) rights any Lien existing on any asset (other than on the Equity Interests of lessees arising under leases entered into one or more Subsidiaries) prior to the acquisition thereof by the Borrower Company or a Subsidiary of the Company and not created in contemplation of such acquisition;
(xix) Liens solely on any xxxx xxxxxxx money deposits made by the Company or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any letter of the foregoingintent or purchase agreement with respect to a Permitted Business Acquisition;
(rxx) any Liens on furniture cash and furnishingsCash Equivalents securing Swap Obligations owing to one or more Persons who are not Swap Creditors; provided that the aggregate amount of all cash and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposesCash Equivalents subject to such Liens may at no time exceed $2,500,000;
(sxxi) Liens on any assets or Equity Interests of a Foreign Subsidiary of the Company securing letters Indebtedness of credit entered into in such Foreign Subsidiary incurred pursuant to clause (a)(xiii) of the ordinary course definition of businessPermitted Indebtedness;
(txxii) Liens granted on evidencing the capital stock consignment of Subsidiaries that are not Restricted Subsidiaries for pharmaceutical inventory to the purpose of securing Borrowers by Amerisource Bergen pursuant to the obligations of such Subsidiaries;Amerisource Bergen Agreement; and
(uxxiii) other Liens in addition to those permitted incurred by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of Company and its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that securing Indebtedness if the aggregate fair market value of the obligations property subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee Liens, and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations secured by such Liens does thereby, do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available1,000,000.
Appears in 1 contract
Samples: Senior Secured Term Credit Agreement (Duane Reade Inc)
Restriction on Liens. The Borrower Xxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Xxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower following clauses: existing and future Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof); existing and future Liens (other than any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(aLiens imposed by ERISA or pursuant to any Environmental Law) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its books;
(b) account thereof); Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of Xxxxxxxxx or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its books;
(c) the effect of preventing the forfeiture or sale of the property or assets subject to such Lien; Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers' compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by business; existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the Borrower use of property or any other minor encumbrances or irregularities of its Restricted Subsidiariestitle not securing Indebtedness or Derivatives Obligations which do not, including Liens to secure obligations under agreements relating to individually or in the purchase and sale of any commodity (including power purchase and sale agreementsaggregate, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Xxxxxxxxx or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in such business; Liens securing (A) the normal course of its business;
secured Indebtedness permitted to be incurred under Section 7.01(iii)(A) and (lB) Purchase Money Indebtedness permitted to be incurred under Section 7.01(iv); any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any Person becomes a Subsidiary of its Restricted Subsidiaries Xxxxxxxxx and not created in contemplation of such event;
(m) ; any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not created in contemplation of such event; any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not created in contemplation of such acquisition; existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker's liens, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower set-off or any of its Restricted Subsidiaries as lessorsimilar rights, in each case incurred in the ordinary course of business;
(p) any ; Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary Xxxxxxxxx its Subsidiaries arising in connection with any Existing Synthetic Lease Financing or the lease an asset securitization transaction permitted pursuant to Section 7.01(v); and Liens other than those permitted by clause (i) through clause (xii) of such this Section 7.02 on property or assets through one of Xxxxxxxxx and its Subsidiaries now owned or more other Synthetic Lease financings;
(v) Liens hereafter acquired by it, or on any Wholly-Owned Subsidiary income or rights in respect thereof, not in excess of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Carpenter Technology Corp)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt permitted under Section 6.6(a);
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen’s compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. The Borrower will shall not, nor will it and shall not permit any of its Restricted Subsidiaries Material Subsidiary to, create, incur, assume or suffer to exist any Lien upon or with respect to on any property or assets of any kind (real asset now owned or personal, tangible or intangible) of hereafter acquired by the Borrower or such Material Subsidiary or assign or otherwise subordinate any such Restricted Subsidiary (includingpresent right, without limitationor subordinate any future right subsequent to the acquisition thereof, their Voting Stock)to receive assets, except:
(a) Liens for taxesexisting on the Closing Date and set forth on Schedule 8.1, assessments or governmental charges or levies which Liens secure Debt outstanding on the Closing Date in an aggregate principal amount not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksexceeding $220,000,000;
(b) purchase money Liens imposed on any capital asset of the Borrower or a Material Subsidiary if such purchase money Lien attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured thereby does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby by lawthe Borrower or such Material Subsidiary; provided, that the aggregate amount of debt (excluding any Debt permitted under clause (a) above), secured by all such as carriers’Liens does not exceed $15,000,000 in the aggregate at any one time outstanding; and provided further, landlords’that no such Lien shall extend to or cover any property or asset of the Borrower or such Material Subsidiary other than the related property or asset (including accessions thereto and proceeds thereof, warehousemen’s and mechanics’ liens and other similar liens arising to the extent provided in the security agreement creating such Lien);
(c) Liens not securing Debt which are incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance, old-age pensions, social security and public liability laws and similar legislation;
(d) Liens securing the performance of bids, tenders, leases, contracts (other than for the repayment of Debt), statutory obligations, and other obligations of like nature, incurred as an incident to and in the ordinary course of business;
(e) Liens securing taxes, assessments or charges or levies of any Governmental Authority or the claims of growers, materialmen, mechanics, carriers, warehousemen, landlords and other like Persons; provided, that (i) with respect to Liens securing taxes, such taxes are not yet due and payable, (ii) with respect to Liens securing claims or demands of growers, materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are inchoate and unfiled and no other action has been taken to enforce the same and (iii) with respect to taxes, assessments or charges or levies of any Governmental Authority secured by such Liens, payment thereof is not at the time required by Section 7.2;
(f) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which secure payment do not materially impair the use of obligations not more than 45 days past due any material property in the operation of the business of the Borrower or any Material Subsidiary or the value of such property for the purpose of such businesses or which are being contested in good faith by appropriate proceedings;
(g) attachment, judgment or similar Liens arising in connection with court proceedings and for which adequate reserves the Brazilian Tax Assessment; provided, that the execution or other enforcement of such Liens is effectively stayed, the claims secured thereby are being actively contested in accordance with GAAP good faith by appropriate proceedings and the Borrower or such Material Subsidiary shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insuranceif required by GAAP, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s appropriate reserves for such Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens Lien existing on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries Person becomes a Material Subsidiary and not created in contemplation of such event;
(mi) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after into the acquisition, construction Borrower or improvement thereof:a Material Subsidiary and not created in contemplation of such event;
(nj) any Lien existing on any asset prior to the acquisition thereof by the Borrower or a Material Subsidiary and not created in contemplation of such event;
(k) Liens given to secure Debt owing to life insurance companies (or affiliates thereof) issuing life insurance policies in connection with Split-Dollar Programs, incurred to finance non-scheduled premiums paid by the Borrower or its Subsidiaries under such policies pursuant to Split-Dollar Agreements executed in connection with the issuance of taxSplit-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, Dollar Program which Debt does not exceed $10,000,000 in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licensesaggregate, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used provided that in connection with any of Split-Dollar Program such Liens shall be limited to the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all Borrower's right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to (i) the Split-Dollar Agreement and the Split-Dollar Assignment executed in connection with such property Split-Dollar Program and in, (ii) the policy of life insurance assigned to and under such lease agreement, whether or not such lease agreement is intended the Borrower as a security; provided, that the aggregate fair market value of the obligations subject collateral pursuant to such Liens shall not at any time exceed $500,000,000Split-Dollar Assignment;
(xl) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens Lien arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) any of the foregoing paragraphs of this SectionSection 8.1; provided, that the principal amount of such Debt or other obligation is not increased and such Debt is not secured by any additional assets;; and
(zm) other Liens on assets or property not otherwise permitted by the foregoing paragraphs of the Borrower or this Section 8.1 securing Debt in an aggregate principal amount at any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does time outstanding not to exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available500,000.
Appears in 1 contract
Samples: Credit Agreement (Dimon Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such a financing statement, except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Debt permitted under Section 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside established to the extent required by GAAP (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall GAAP, which proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)any Liens imposed by ERISA) securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, public or statutory obligations, surety and appeal bonds, performance bonds unemployment insurance and other types of social security and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivi) Liens on assets securing obligations in respect of surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the Borrower and its Restricted Subsidiaries arising out ordinary course of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jvii) rights reserved to Liens upon specific items or vested in any municipality inventory or public authority to control or regulate any asset other goods and proceeds of the Borrower or any of its Restricted Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other goods;
(viii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance in the ordinary cause of business;
(ix) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(vii);
(x) Liens arising solely by virtue of any statutory or common Law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xi) licenses, leases or subleases granted to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xii) zoning restrictions, building codes, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use such asset of property or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in a manner which does not the aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lxiii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or other property (other than proceeds of insurance payable by reason of such judgments, decrees or attachments) the fair value of which exceeds $150,000 is deposited or delivered to secure any such judgment, decree or award, or any appeal bond in respect thereof;
(xiv) Liens securing Debt permitted to be incurred under Section 7.01(i), (iii) and (iv);
(xv) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxvi) any Lien existing on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) prior to the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into acquisition thereof by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or and not created in contemplation of such acquisition;
(xvii) Liens on any Restricted assets of a Foreign Subsidiary for the benefit of the Borrower or any securing Indebtedness of such Restricted SubsidiaryForeign Subsidiary incurred pursuant to Section 7.01(x);
(wxviii) other Liens on property which is the subject of a Capital Lease Obligation designating incurred by the Borrower or any of and its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that securing Indebtedness if the aggregate fair market value of the obligations property subject to such Liens shall Liens, and the aggregate amount of the obligations secured thereby, do not at any time exceed $500,000,000;250,000; and
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yxix) Liens arising out of consignment or similar arrangements for the refinancing, extension, renewal or refunding of any Debt or other obligation secured sale by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of goods through third parties in the most recent fiscal quarter ordinary course of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Credit Agreement (Orbimage Inc)
Restriction on Liens. The Borrower Buyer will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a1) any Liens created by the Collateral Documents;
(2) any purchase money security interest on any capital asset of Buyer if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof; provided, that the aggregate amount of Debt secured by all such purchase money security interests does not exceed $100,000 in the aggregate at any one time outstanding and provided, that no such purchase money security interest shall extend to or cover any of the Acquired Assets or any other property or asset of Buyer other than the capital asset so purchased;
(3) Liens for taxessecuring Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (A) with respect to Liens securing state and local Taxes, such Taxes are not yet due payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or such claims or demands are paid within thirty (30) days after such Liens are filed, or (C) with respect to Taxes, assessments or governmental charges or levies or claims or demands secured by such Liens, payment of which are being contested in good faith and is not at the time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksSection 17(b);
(b4) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(5) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksproceedings;
(c6) Liens arising out of pledges or deposits under worker’s compensation lawszoning restrictions, unemployment insuranceeasements, old age pensionslicenses, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-wayreservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real property;
(e) Liens existing property or other minor encumbrances or irregularities of title which affected the Real Property on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments Date, or which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does do not materially impair the use of such asset for any property used in the purposes for which it is held by operation or business of Buyer or the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: Asset Purchase Agreement (Natural Gas Services Group Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Restricted Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biii) Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Restricted Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $1,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(ev) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, public or statutory obligations, surety and appeal bonds, performance bonds unemployment insurance and other types of social security and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivi) Liens securing obligations in respect of surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business; provided that (A) in the case of Liens on assets cash and Cash Equivalents, the amount of all cash and Cash Equivalents subject to such Liens may at no time exceed $20,000,000 in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.aggregate;
(jvii) zoning restrictions, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lviii) (A) Liens securing Capital Lease Obligations permitted to be incurred under Section 7.01(iii) and refinancings or replacements thereof permitted to be incurred under Section 7.01(iv) and (B) Liens securing Purchase Money Indebtedness permitted to be incurred under Section 7.01(iii);
(ix) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Restricted Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mx) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Restricted Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxi) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Restricted Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxii) any Liens on or reservations with Lien securing Refinancing Indebtedness in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Indebtedness of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through ix), (x), (xi) or (xii) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and Indebtedness is not secured by any additional assets;
(zxiii) other Liens on assets arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or property title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the Borrower or any ordinary course of its Restricted Subsidiaries, other than business;
(xv) Liens on against the Voting Stock portion of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of cash access transactions settlement proceeds representing fees accruing to a Group Company’s benefit; provided such Liens are to secure the obligations secured by such Liens does of a Group Company in the ordinary course of business;
(xvi) licenses, leases or subleases granted to third Persons in the ordinary course of business not exceed interfering in any material respect with the greater business of $250,000,000 any Group Company; and
(xvii) reserve accounts, security deposits, prepaid chargeback accounts, security interests or 15% similar arrangements with gaming establishment customers or financial services business partners entered into in the ordinary course of business in regards to the total consolidated assets processing and settlement of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablecash access transactions.
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Restriction on Liens. 55- (169) The Borrower will shall not, nor will it and shall not permit any of its Restricted Subsidiaries Material Subsidiary to, create, incur, assume or suffer to exist any Lien upon or with respect to on any property or assets of any kind (real asset now owned or personal, tangible or intangible) of hereafter acquired by the Borrower or such Material Subsidiary or assign or otherwise subordinate any such Restricted Subsidiary (includingpresent right, without limitationor subordinate any future right subsequent to the acquisition thereof, their Voting Stock)to receive assets, except:
(a) Liens for taxesexisting on the Closing Date and set forth on Schedule 8.1, assessments or governmental charges or levies which Liens secure Debt outstanding on the Closing Date in an aggregate principal amount not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksexceeding $50,000,000;
(b) purchase money Liens imposed on any capital asset of the Borrower or a Material Subsidiary if such purchase money Lien attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured thereby does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby by lawthe Borrower or such Material Subsidiary; provided, that the aggregate amount of debt (excluding any Debt permitted under clause (a) above), secured by all such as carriers’Liens does not exceed $15,000,000 in the aggregate at any one time outstanding; and provided further, landlords’that no such Lien shall extend to or cover any property or asset of the Borrower or such Material Subsidiary other than the related property or asset (including accessions thereto and proceeds thereof, warehousemen’s and mechanics’ liens and other similar liens arising to the extent provided in the security agreement creating such Lien);
(c) Liens not securing Debt which are incurred in the ordinary course of business in connection with workers' compensation, unemployment insurance, old-age pensions, social security and public liability laws and similar legislation;
(d) Liens securing the performance of bids, tenders, leases, contracts (other than for the repayment of Debt), statutory obligations, and other obligations of like nature, incurred as an incident to and in the ordinary course of business;
(e) Liens securing taxes, assessments or charges or levies of any Governmental Authority or the claims of growers, materialmen, mechanics, carriers, warehousemen, landlords and other like Persons; provided, that (i) with respect to Liens securing taxes, such taxes are not yet due and payable, (ii) with respect to Liens securing claims or demands of growers, materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are inchoate and unfiled and no other action has been taken to enforce the same and (iii) with respect to taxes, assessments or charges or levies of any Governmental Authority secured by such Liens, payment thereof is not at the time required by Section 7.2;
(f) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which secure payment do not materially impair the use of obligations not more than 45 days past due any material property in the operation of the business of the Borrower or any Material Subsidiary or the value of such property for the purpose of such businesses or which are being contested in good faith by appropriate proceedings;
(g) attachment, judgment or similar Liens arising in connection with court proceedings and for which adequate reserves the Brazilian Tax Assessment; provided, that the execution or other enforcement of such Liens is effectively stayed, the claims secured thereby are being actively contested in accordance with GAAP good faith by appropriate proceedings and the Borrower or such Material Subsidiary shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insuranceif required by GAAP, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s appropriate reserves for such Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens Lien existing on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries Person becomes a Material Subsidiary and not created in contemplation of such event;
(mi) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after into the acquisition, construction Borrower or improvement thereof:a Material Subsidiary and not created in contemplation of such event;
(nj) any Lien existing on any asset prior to the acquisition thereof by the Borrower or a Material Subsidiary and not created in contemplation of such event;
(k) Liens given to secure Debt owing to life insurance companies (or affiliates thereof) issuing life insurance policies in connection with Split-Dollar Programs, incurred to finance non- scheduled premiums paid by the Borrower or its Subsidiaries under such policies pursuant to Split-Dollar Agreements executed in connection with the issuance of taxSplit-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, Dollar Program which Debt does not exceed $10,000,000 in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licensesaggregate, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used provided that in connection with any of Split-Dollar Program such Liens shall be limited to the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all Borrower's right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to (i) the Split-Dollar Agreement and the Split-Dollar Assignment executed in connection with such property Split-Dollar Program and in, (ii) the policy of life insurance assigned to and under such lease agreement, whether or not such lease agreement is intended the Borrower as a security; provided, that the aggregate fair market value of the obligations subject collateral pursuant to such Liens shall not at any time exceed $500,000,000Split-Dollar Assignment;
(xl) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens Lien arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) any of the foregoing paragraphs of this SectionSection 8.1; provided, that the principal amount of such Debt or other obligation is not increased and such Debt is not secured by any additional assets;; and
(zm) other Liens on assets or property not otherwise permitted by the foregoing paragraphs of the Borrower or this Section 8.1 securing Debt in an aggregate principal amount at any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does time outstanding not to exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available500,000.
Appears in 1 contract
Samples: Credit Agreement (Dimon Inc)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens Liens and other similar liens Liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Escrow Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof Escrow Closing Date existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements for or relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)) provided, that, with respect to any Lien on electric generating plants of any Restricted Subsidiary to secure obligations under agreements for or relating to the purchase and sale of any commodity, the amount of the outstanding obligations secured by such Lien or Liens shall not, at any time, in the aggregate, exceed $1.5 billion;
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.;
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic the Lower Mt. Bethel Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
(aa) Liens granted to the Administrative Agent pursuant to Sections 2.09(a)(ii) and 2.20(a)(ii)(B) on cash collateral securing Letter of Credit Liabilities.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:"Permitted Liens"):
(ai) Liens securing the Senior Debt;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , sellers of goods, carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which (A) secure payment of obligations charges, claims, demands, or levies which are not more than 45 30 days past due overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (c) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $5,750,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(dv) easements Liens (includingother than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances unemployment insurance and other restrictions, charges or encumbrances (whether or not recorded) affecting types of social security and other similar obligations incurred in the use ordinary course of real propertybusiness;
(evi) Liens existing on the Closing Date and described (including pledges or deposits) securing obligations in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts surety bonds (other than contracts for borrowed moneyappeal bonds), bids, trade contracts, public or statutory obligations, surety and appeal bondsleases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) Liens pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on assets the ordinary cause of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jviii) zoning restrictions, building codes, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lix) Permitted Encumbrances;
(x) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01(iii) and Liens securing Debt of Foreign Subsidiaries permitted under Section 7.01(xviii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker's liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or license entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries;
(xxi) Liens existing on the Closing Date and listed on Schedule 7.02 hereto; provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Holdings and its Subsidiaries (other than accessions to and the proceeds of the property or property assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person's obligations in respect of bankers' acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods;
(xxiv) Liens on deemed to exist in the Voting Stock of ordinary course in connection with Cash Equivalents; and
(xxv) other Liens incurred by the Borrower in and its Restricted Subsidiaries, so long as Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available11,500,000.
Appears in 1 contract
Restriction on Liens. The Borrower Client will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(ai) Liens for existing on the date of this Agreement not exceeding $0;
(ii) any Liens created by the Collateral Documents; [PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
(iii) any purchase money security interest on any capital asset of the Client if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Client; provided, that the aggregate amount of Debt secured by all such Liens does not exceed five thousand dollars ($5,000) in the aggregate at any one time outstanding and provided, that no such purchase money security interest shall extend to or cover any property or asset of the Client other than the related asset;
(iv) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (A) with respect to Liens securing state and local taxes, such taxes are not yet due payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demands secured by such Liens, payment of which are being contested in good faith and is not at the time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksSection 5.2;
(bv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen’s compensation, unemployment insurance, social security and other like laws;
(vi) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;proceedings; and
(cvii) Liens arising out of pledges or deposits under worker’s compensation lawszoning restrictions, unemployment insuranceeasements, old age pensionslicenses, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-wayreservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower Client or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of OH Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , suppliers, mechanics’ liens , sellers of goods, carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which (A) secure payment of obligations charges, claims, demands, or levies which are not more than 45 30 days past due overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (C) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $5,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(dv) easements Liens (includingother than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances unemployment insurance and other restrictions, charges or encumbrances (whether or not recorded) affecting types of social security and other similar obligations incurred in the use ordinary course of real propertybusiness;
(evi) Liens existing on the Closing Date and described (including pledges or deposits) securing obligations in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts surety bonds (other than contracts for borrowed moneyappeal bonds), bids, trade contracts, public or statutory obligations, surety and appeal bondsleases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) Liens pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on assets the ordinary cause of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jviii) zoning restrictions, building codes, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any Mortgaged Property in the purposes for which it is held by the Borrower operation or business of OH Holdings or any of its Restricted SubsidiariesSubsidiaries and any other matters affecting title that would not have a material adverse effect on the use or value of the affected property;
(kix) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its businessPermitted Encumbrances;
(lx) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01 (iii) and Liens securing Debt of Foreign Subsidiaries permitted under Section 7.01 (xviii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries pursuant to a Permitted Business Acquisition and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued Borrower pursuant to Section 103(b) a Permitted Business Acquisition and not created in contemplation of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertysuch event;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower pursuant to a Permitted Business Acquisition and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business and not given in connection with the incurrence of Debt;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on assets (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or property Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or license entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries;
(xxi) [reserved]
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods; and
(xxiv) Liens on deemed to exist in the Voting Stock of ordinary course in connection with Cash Equivalents;
(xxv) other Liens incurred by the Borrower in and its Restricted Subsidiaries, so long as Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed at any time $15,000,000;
(xxvi) licenses of Intellectual Property granted by a Group Company in the greater ordinary course of $250,000,000 business, provided that such licenses are not exclusive licenses that are also irrevocable or 15% of the total consolidated perpetual in duration;
(xxvii) Liens on assets of Foreign Subsidiaries and non-Wholly Owned Domestic Subsidiaries securing Debt incurred pursuant to Section 7.01(xviii); and
(xxviii) Liens as to which the fee interest (or any other superior interest) in real property leased by the Borrower and or any of its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableis subject.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower Xxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Xxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing clauses:
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(ii) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biii) existing and future Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of Xxxxxxxxx or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(v) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and bonds (other than appeal bonds), bids, leases, government contracts, performance and return–of–money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivi) Liens existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on assets the use of property or other minor encumbrances or irregularities of title not securing Indebtedness which do not, individually or in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchiseaggregate, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Xxxxxxxxx or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lvii) Liens securing (A) the secured Indebtedness permitted to be incurred under Section 7.01(iii)(A) and (B) Purchase Money Indebtedness permitted to be incurred under Section 7.01(iv);
(viii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any Person becomes a Subsidiary of its Restricted Subsidiaries Xxxxxxxxx and not created in contemplation of such event;
(mix) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after the acquisition, construction into Xxxxxxxxx or improvement thereof:
(n) any Liens a Subsidiary of Xxxxxxxxx and not created in connection with the issuance contemplation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertysuch event;
(ox) any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a Subsidiary of Xxxxxxxxx and not created in contemplation of such acquisition;
(xi) existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of lessees arising under leases entered into by the Borrower set–off or any of its Restricted Subsidiaries as lessorsimilar rights, in each case incurred in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(sxii) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary Xxxxxxxxx or its Subsidiaries arising in connection with any Existing Synthetic Lease Financing or the lease an asset securitization transaction permitted pursuant to Section 7.01(v); and
(xiii) Liens other than those permitted by clause (i) through clause (xii) of such this Section 7.02 on property or assets through one of Xxxxxxxxx and its Subsidiaries now owned or more other Synthetic Lease financings;
(v) Liens hereafter acquired by it, or on any Wholly-Owned Subsidiary income or rights in respect thereof, not in excess of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Samples: Revolving Credit Agreement (Carpenter Technology Corp)
Restriction on Liens. The Borrower Guarantor will not, nor will it permit -------------------- any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower Guarantor or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Second Document Closing Date and described in Schedule 6.07 15.8 hereto;; -------------
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.017.01 of the PPL Supply Credit Agreements as of the Closing Date;
(g) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower Guarantor or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, -------- that, in any such case no such Lien shall extend to or cover any other asset of the Borrower Guarantor or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower Guarantor or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(i) Liens on assets of the Borrower Guarantor and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority Governmental Authority with respect to any franchise, grant, license, permit or certificate.;
(j) rights reserved to or vested in any municipality or public authority Governmental Authority to control or regulate any asset of the Borrower Guarantor or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower Guarantor or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower Guarantor or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower Guarantor or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:;
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower Guarantor or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) with respect to PPL Interstate Energy Company, any Liens other than Liens securing Debt of PPL Interstate Energy Company;
(q) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qr) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(rs) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(st) Liens securing letters of credit entered into in the ordinary course of business;
(tu) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uv) Liens in addition to those permitted by clauses (a) through (tu) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(vw) Liens by any Wholly-Owned Subsidiary of the Borrower Guarantor or any Restricted Subsidiary for the benefit of the Borrower Guarantor or any such Restricted Subsidiary;
(wx) Liens arising in respect of the Caribou Joint Venture; provided, that the aggregate value of the obligations secured by such Liens shall not at any time exceed $500,000,000;
(y) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower Guarantor or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower Guarantor or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to -------- such Liens shall not at any time exceed $500,000,000;
(xz) Liens on property which is the subject of one or more leases designating the Borrower Guarantor or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower Guarantor or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yaa) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (xaa) of this Section; provided, that such Debt or other -------- obligation is not increased and is not secured by any additional assets;; or
(zbb) other Liens on assets or property of the Borrower Guarantor or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower Guarantor in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower Guarantor and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower Guarantor for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any -------------------- of its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt permitted under Section 6.6(a);
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with -------- respect to Liens securing state and local taxes, such taxes are not yet payable, (b) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(a) (i) any Lien on any property in connection with a Sale and Leaseback Transaction permitted by Section 5.14, (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary and not created in anticipation of such acquisition which acquisition is not otherwise prohibited by this Agreement, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not attach to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.15 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out any Lien securing Debt of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Subsidiary owing to a Subsidiary Guarantor;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting any Lien created by the use of real propertySenior Loan Documents;
(e) Liens existing any Lien created or permitted by the Second Priority Collateral Documents with respect to the Second Priority Debt Obligations in favor of the Second Priority Debt Parties; provided that such Lien is created simultaneously with or after an equivalent Lien under the Senior Collateral Documents on the Closing Date applicable Collateral and described in Schedule 6.07 heretois subject to the Collateral Trust and Intercreditor Agreement, and any Lien on the proceeds of such Collateral permitted by the Collateral Trust and Intercreditor Agreement;
(f) judgment Liens arising from judgments which secure payment any Lien under the Exchange Debt First Priority Collateral Documents in favor of legal obligations the Exchange Debt Parties, provided that would not constitute a Default under Section 7.01such Lien is limited to the Exchange Debt First Priority Collateral;
(g) any vendor’s LiensLien under the PCS Pledge Agreement and the Xxxxxxxxx.xxx Pledge Agreement in favor of the Existing Facility Parties and the Synthetic Lease Parties, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no provided that such Lien shall extend is limited to or cover any other asset of the Borrower or "Collateral" as such Restricted Subsidiaries, as the case may beterm is defined in each such document;
(h) Liens, deposits and/or similar arrangements existing Liens under the Synthetic Lease Documents and Liens under the Synthetic Leases permitted pursuant to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)Section 5.29;
(i) Liens identified on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties Schedule 5.15(i); provided, however, that such Liens do not attach to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.other property other than that identified in such Schedule;
(j) rights reserved Liens in respect of Debt or Attributable Debt permitted under Section 5.20(f), (g), (h), (i) and (j) so long as such Liens attach only to (i) the equipment subject to such financing, (ii) the property to which they attach on the Initial Borrowing Date (or vested in the case of any municipality lease which is reclassified as a Capital Lease, any property subject to such lease on the Initial Borrowing Date), or public authority to control (iii) the property or regulate any asset of the Borrower assets constructed, developed or any of its Restricted Subsidiaries or to use purchased with such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiariesfinancing;
(k) irregularities in or deficiencies any Lien consisting of title to any asset which do not materially adversely affect the use cash collateralization of such property by the Borrower or any Independent Standby Letters of its Restricted Subsidiaries Credit if (i) there is a default in the normal course payment when due of its business;any reimbursement obligation in connection therewith or (ii) if (and for so long as) an Event of Default has occurred and is continuing hereunder; and
(l) any Lien on any property or asset Net Cash Proceeds of any corporation or other entity existing at Reduction Events allocated to the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created Exchange Note Obligations in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection accordance with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued Collateral Trust and Intercreditor Agreement, which Lien arises pursuant to Section 103(b) 10.14 of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableExchange Note Indenture.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, to at any time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by the Borrower or any of its Subsidiaries or assign or subordinate any present or future right to receive assets of except:
(i) any kind Liens created by the Collateral Documents;
(real or personal, tangible or intangibleii) any purchase money security interest on any capital asset of the Borrower or any of its Subsidiaries if such Restricted purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed 80% of the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower or such Subsidiary; provided, that no such purchase money security interest shall extend to or cover any property or asset of the Borrower or such Subsidiary (including, without limitation, their Voting Stock), except:other than the related asset;
(aiii) Liens for taxessecuring Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (A) with respect to Liens securing state and local Taxes, such Taxes are not yet due payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to Taxes, assessments or governmental charges or levies or claims or demands secured by such Liens, payment of which are being contested in good faith and is not at the time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksSection 6.2;
(biv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(v) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksproceedings;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(evi) Liens existing on Acquired assets or the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment assets of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset Acquired entities at the time of acquisition thereof (and not created in anticipation thereof); providedAcquisition, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;and
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uvii) Liens in addition to those permitted by clauses (a) through (t) existence on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(vEffective Date and set forth on Schedule 6.8(vii) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablehereto.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (tu) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for existing on the date of this Agreement not exceeding $0;
(b) Liens created by the Collateral Documents;
(c) any purchase money security interest on any capital asset of the Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower; provided, that the aggregate amount of Debt secured by all such Liens does not exceed $25,000 in the aggregate at any one time outstanding and provided that no such purchase money security interest shall extend to or cover any property or asset of the Borrower other than the related asset;
(d) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (i) with respect to Liens securing state and local taxes, such taxes are not yet due payable, (ii) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or (iii) with respect to taxes, assessments or governmental charges or levies or claims or demands secured by such Liens, payment of which are being contested in good faith and is not at the time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksSection 5.2;
(be) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(f) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01proceedings;
(g) any vendor’s Lienszoning, purchase money Liens or any other Lien restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on any the use of property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part such business; and
(h) subject to the terms of the cost of acquiringSubordination Agreement, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of Liens securing the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into Debt evidenced by the Borrower or any of its Restricted Subsidiaries as lessor, in Senior Credit Agreement and the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableSenior Credit Documents.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Summer Energy Holdings Inc)
Restriction on Liens. The Borrower Guarantor will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guar-xxxxx any Secured Debt without making effective provision (and the Guarantor covenants that in such case R will make or cause to exist be made effecrive provision) whereby the Notes (and any other Debt of the Guarantor or such Subsidiary then entitled thereto) shall be secured by the same Uen equally and ratably with (or prior to) any and all other obligations and Debt thereby secured for so long as any such other obligations and Debt shall be so secured; provided that the foregoing covenant shall not apply to the following:
(i) Any Lien on any Property acquired or constructed by the Guarantor or a Subsidiary and created contemporaneously with, or within twenty-four (24) months after, such acquisition or the completion of such construction and commencement of full operation off such Property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such Property, or
(ii) the acquisition by the Guarantor or a Subsidiary of Property subject to any Lien upon such Property existing at the time of acquisition thereof, whether or not assumed by the Guarantor or such Subsidiary, or
(iii) any conditional sales agreement or other title retention agreement with respect to any property Property hereafter acquired; provided that the Lien does not spread to other Property except unimproved real Property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed Property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5-9 or any Lien securing the Debt of the Guarantor or of any Subsidiary on the date of this Guaranty or of a corporation at the time such corporation becomes a Subsidiary, or any extension% renewals or refunding$ of any such as carriers’Uen; provided that the principal amount, landlords’of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, warehousemen’s renewal or refunding and mechanics’ liens and other similar liens arising in that such extension, renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same Property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Guarantor or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;a WhollyOwned Consolidated Subsidiary; and
(d) easements (including, without limitation, reciprocal easement agreements Secured Debt of the Guarantor and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments its Subsidiaries which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired otherwise be prohibited by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof foregoing restrictions (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend including Secured Debt permitted to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations be secured under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses subsections (a) through (tc) on above) so long as the property or assets sum of a Special Purpose Subsidiary arising any such Secured Debt hereafter incurred and outstanding at the time plus Attributable Debt of the Guarantor and any Subsidiaries in connection with respect of Sale and Leaseback Transaofionr, hereafter entered into and outstanding at the time (excluding Attributable Debt incurred in respect of any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;Sale and Leaseback Transaction
(vi) Liens entered into in respect of Property acquired by any Whollythe Guarantor or a Subsidiary not more than twenty-Owned Subsidiary four (24) months prior to the date such Sale and Leaseback Transaction is entered into or
(ii) if the Guarantor, within one hundred twenty (120) days before or after such Sale and Leaseback Transaction is entered into, applies an amount equal to the greater of
(A) the net proceeds of the Borrower or any Restricted Subsidiary for the benefit sale of the Borrower or any such Restricted Subsidiary;Property so sold and leased back or
(wB) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such Property at the obligations subject date such arrangement is entered into, the retirement of Secured Debt (other than at maturitY or pursuant to such Liens shall not at any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) Plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt owed to the Guarantor or other obligation secured by any Lien permitted by clauses a Wholly-Owned Consolidated Subsidiary) does not at the time exceed five percent (a) through (x5%) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Tangible Assets.
Appears in 1 contract
Samples: Guaranty Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower Cxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Cxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing clauses:
(ai) existing and future Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Cxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(ii) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Cxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biii) Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of Cxxxxxxxx or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(v) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivi) Liens existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on assets the use of property or other minor encumbrances or irregularities of title not securing Indebtedness or Derivatives Obligations which do not, individually or in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchiseaggregate, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Cxxxxxxxx or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lvii) Liens securing (A) the secured Indebtedness permitted to be incurred under Section 7.01(iii)(A) and (B) Purchase Money Indebtedness permitted to be incurred under Section 7.01(iv);
(viii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any Person becomes a Subsidiary of its Restricted Subsidiaries Cxxxxxxxx and not created in contemplation of such event;
(mix) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after the acquisition, construction into Cxxxxxxxx or improvement thereof:
(n) any Liens a Subsidiary of Cxxxxxxxx and not created in connection with the issuance contemplation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertysuch event;
(ox) any Lien existing on any asset prior to the acquisition thereof by Cxxxxxxxx or a Subsidiary of Cxxxxxxxx and not created in contemplation of such acquisition;
(xi) existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of lessees arising under leases entered into by the Borrower set-off or any of its Restricted Subsidiaries as lessorsimilar rights, in each case incurred in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(sxii) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary Cxxxxxxxx its Subsidiaries arising in connection with any Existing Synthetic Lease Financing or the lease an asset securitization transaction permitted pursuant to Section 7.01(v); and
(xiii) Liens other than those permitted by clause (i) through clause (xii) of such this Section 7.02 on property or assets through one of Cxxxxxxxx and its Subsidiaries now owned or more other Synthetic Lease financings;
(v) Liens hereafter acquired by it, or on any Wholly-Owned Subsidiary income or rights in respect thereof, not in excess of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Carpenter Technology Corp)
Restriction on Liens. The Borrower Xxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Xxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:the “Permitted Liens”):
(a) Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(b) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies (i) which are not yet due or as to which are the grace period (not to exceed thirty (30) days) has not yet expired or (ii) being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(bc) existing and future Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (i) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are material to the business of Xxxxxxxxx or any of its Subsidiaries and which are the subject of such Lien or materially impair the use thereof in the operation of the business of Xxxxxxxxx or any of its Subsidiaries or (ii) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its books;
(c) Liens arising out the effect of pledges preventing the forfeiture or deposits under worker’s compensation laws, unemployment insurance, old age pensions, sale of the property or other social security or retirement benefits, or similar legislationassets subject to such Lien;
(d) easements Liens arising from judgments, decrees or attachments (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or securing of appeal bonds with respect thereto) in circumstances not recorded) affecting the use constituting an Event of real propertyDefault under Section 8.01;
(e) existing and future Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public any Liens imposed by ERISA or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature pursuant to any Environmental Law) incurred or deposits made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the issuance performance of taxtenders, statutory obligations, surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-exempt industrial development or pollution control of-money bonds or and other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, obligations incurred in the ordinary course of business;
(pf) existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title not securing Indebtedness which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of Xxxxxxxxx or any of its Subsidiaries or the value of such property for the purpose of such business;
(g) Liens on or reservations securing (i) the secured Indebtedness permitted to be incurred under Section 7.01(d)(i) and (ii) Purchase Money Indebtedness permitted to be incurred under Section 7.01(e); provided that, with respect to governmental and clause (ii), such Lien does not at any time encumber any property other licenses, permits, franchises, consents and allowances; any than the property financed by such Indebtedness (except for the products or proceeds of the assets subject to such Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareto the extent provided by the terms thereof at the time such Liens are granted);
(qh) any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of Xxxxxxxxx; provided that (i) such Liens on automobiles, buses, trucks were not created in contemplation of such event and (ii) such Liens do not extend to any assets other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any than those affected thereby prior to such event (except for the products or proceeds of the foregoingassets subject to such Liens to the extent provided by the terms thereof on the date of such event);
(ri) any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens were not created in contemplation of such event and (ii) such Liens do not extend to any assets other than those affected thereby prior to such event (except for the products or proceeds of the assets subject to such Liens to the extent provided by the terms thereof on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposesthe date of such event);
(sj) any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens securing letters were not created in contemplation of credit entered into such event and (ii) such Liens do not extend to any assets other than those affected thereby prior to such event (except for the products or proceeds of the assets subject to such Liens to the extent provided by the terms thereof on the date of such event);
(k) existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(tl) Liens granted on any provision of Cash Collateral pursuant to the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiariesterms hereof;
(um) Liens in addition to those arising from precautionary uniform commercial code financing statements filed under any lease permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financingsthis Agreement;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yn) Liens arising out of conditional sale, title retention, consignment or similar arrangements entered into by Xxxxxxxxx or any of its Subsidiaries in the refinancing, extension, renewal or refunding ordinary course of any Debt or business; and
(o) Liens other obligation secured by any Lien than those permitted by clauses clause (a) through clause (xn) of this Section; provided, that such Debt Section 7.02 on property or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower Xxxxxxxxx and its Subsidiaries now owned or hereafter acquired by it, or on any income or rights in respect thereof, not in excess of fifteen percent (15%) of Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of -------------------- its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carders, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. The Borrower will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) any Liens for taxescreated by the this Agreement and all other Loan Documents;
(b) any purchase money security interest on any capital asset of the Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower; provided, that no such purchase money security interest shall extend to or cover any property or asset of the Borrower other than the related asset;
(c) Liens securing Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (i) with respect to Liens securing Taxes, assessments or governmental charges, such Taxes are not yet due payable pursuant to subsection (C)(2) above, or which are being contested in good faith not required to be paid, or (ii) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and by appropriate proceedings the like, such Liens are unfiled and for which adequate reserves in accordance with GAAP shall have no other action has been set aside on its bookstaken to enforce the same;
(bd) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(e) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distrait or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;proceedings; and
(f) judgment Liens arising from judgments which secure payment zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(i) Any Lien on any property acquired or constructed by the Borrower or a Subsidiary and created contemporaneously with, or within 24 months after, such acquisition or the completion of such construction and commencement of full operation of such property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such property, or (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not spread to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.10 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Borrower or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Wholly-Owned Consolidated Subsidiary;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges Any Lien created by the Loan Documents or encumbrances (whether or not recorded) affecting the use of real property;1996 Loan Documents; and
(e) Liens existing on Secured Debt of the Closing Date Borrower and described its Subsidiaries which would otherwise be prohibited by the foregoing restrictions (not including Secured Debt permitted to be secured under subsections (a) through (d) above) so long as the sum of any such Secured Debt hereafter incurred and outstanding at the time plus Attributable Debt of the Borrower and any Subsidiaries in Schedule 6.07 hereto;
respect of Sale and Leaseback Transactions hereafter entered into and outstanding at the time (fexcluding Attributable Debt incurred in respect of any Sale and Leaseback Transaction (i) judgment Liens arising from judgments which secure payment entered into in respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after a Subsidiary not more than 24 months prior to the date hereof existing on any such property Sale and Leaseback Transaction is entered into or asset at (ii) if the time Borrower, within 120 days before or after such Sale and Leaseback Transaction is entered into applies an amount equal to the greater of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset A) the net proceeds of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property so sold and leased back or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or (B) the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such property at the obligations subject date such arrangement is entered into to such Liens shall not the retirement of Secured Debt (other than at maturity or pursuant to any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of owed to the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens a Wholly-Owned Consolidated Subsidiary) does not at the time exceed the greater of $250,000,000 or 155% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Tangible Assets.
Appears in 1 contract
Samples: Term Loan Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(a) (i) any Lien on any property in connection with a Sale and Leaseback Transaction permitted by Section 5.10, (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary and not created in anticipation of such acquisition, which acquisition is not otherwise prohibited by this Agreement, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not attach to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.11 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out any Lien securing Debt of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Subsidiary owing to a Subsidiary Guarantor;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting any Lien created by the use of real propertyLoan Documents;
(e) Liens existing on any Lien created by the Closing Date Senior Loan Documents; provided that (i) with respect to any specific Collateral which is also Senior Collateral, a Lien is created simultaneously under the Second Priority Collateral Documents and described in Schedule 6.07 heretois subject to the Collateral Trust and Intercreditor Agreement and (ii) the aggregate principal amount of Senior Debt Obligations to be secured by such Lien shall not exceed the amount permitted by Section 6.02 of the Collateral Trust and Intercreditor Agreement; and provided further that no such Lien may attach to Exchange Debt First Priority Collateral;
(f) judgment Liens arising from judgments which secure payment any Lien under the PCS Pledge Agreement and the Xxxxxxxxx.xxx Pledge Agreement in favor of legal obligations the Existing Facility Parties and the Synthetic Lease Parties, provided that would not constitute a Default under Section 7.01such Lien is limited to the "COLLATERAL" as such term is defined in each such document;
(g) any vendor’s Liens, purchase money existing Liens or any other Lien on any property or asset acquired by under the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (Synthetic Lease Documents and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend Liens under Synthetic Leases permitted pursuant to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may beSection 5.25;
(h) LiensLiens identified on Schedule 5.11(h); provided, deposits and/or similar arrangements however, that such Liens do not attach to secure the performance of bids, tenders or contracts (any other property other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred that identified in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)Schedule;
(i) Liens in respect of Debt or Attributable Debt permitted under Sections 5.16(f), (g), (h), (i) and (j) so long as such Liens attach only to (i) the equipment subject to such financing, (ii) the property to which they attach on the Closing Date (or in the case of any operating lease which is reclassified as a Capital Lease, any property subject to such lease on the Closing Date), or (iii) the property or assets of the Borrower and its Restricted Subsidiaries arising out of obligations constructed, developed or duties to any municipality or public authority purchased with respect to any franchise, grant, license, permit or certificate.such financing; and
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset Net Cash Proceeds of any corporation or other entity existing at Reduction Events allocated to the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created Exchange Note Obligations in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection accordance with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued Collateral Trust and Intercreditor Agreement, which Lien arises pursuant to Section 103(b) 10.14 of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableExchange Note Indenture.
Appears in 1 contract
Restriction on Liens. The Borrower Guarantor will not, nor and will it not permit any of its Restricted Subsidiaries to, to create, incur, assume or suffer to exist any Lien upon any Principal Property, whether owned at the date of this Indenture or thereafter acquired, to secure any Indebtedness, without making effective provision whereby the Securities (together with, if the Guarantor shall so determine, any Indebtedness of the Guarantor or any Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured by such Lien equally and ratably with (or prior to) any and all other Indebtedness secured by Liens so long as that Indebtedness is so secured unless, after giving effect thereto, the aggregate amount of all Indebtedness secured by Liens plus all Attributable Debt of the Guarantor and its Restricted Subsidiaries with respect to Sale and Lease-Back Transactions would not exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 1009 shall not apply to, and there shall be excluded from Indebtedness secured by Liens in any property computation under this Section 1009 or assets of Section 1008, Indebtedness secured by any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e1) Liens existing on the Closing Date and described in Schedule 6.07 heretodate of the Indenture;
(f2) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof by the Guarantor or a Restricted Subsidiary; provided that (and not created in anticipation thereof); provided, that, in any such case no A) each such Lien shall extend at all times be confined solely to the asset or cover any other asset assets so acquired and (B) the principal amount of Indebtedness secured by each such Lien shall at no time exceed the cost of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred assets in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating question to the purchase and sale of any commodity Guarantor or the respective Restricted Subsidiary (including power purchase and sale agreements, any commodity hedge or derivative regardless the principal amount of whether any such transaction is a “financial” or “physical transaction”the Indebtedness secured thereby);
(i3) Liens in favor of the Guarantor or any wholly-owned Restricted Subsidiary;
(4) Liens in favor of any governmental body to secure progress, advance or other payments pursuant to any contract or provision of any statute;
(5) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties property to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing secure all or any part of the cost of acquiring, constructing substantially repairing or altering, constructing, developing or substantially improving such asset; providedproperty, that or to secure Indebtedness incurred to provide funds for any such purpose; provided that (A) such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within comes into existence not later than 180 days after the later of (i) the completion of the acquisition, construction substantial repair or alteration, construction, development or substantial improvement thereof:
of such property or (nii) any Liens the placing in operation of such property or of such property as so substantially repaired or altered, constructed, developed or substantially improved and (B) the principal amount of Indebtedness secured by such Lien does not exceed the cost of such acquisition, repair, alteration, construction, development or improvement; provided, however, that if such Indebtedness is in connection with the issuance acquisition of taxany Timberlands, and the Board of Directors of the Guarantor has determined, within 180 days of such acquisition, that the Guarantor will seek such Indebtedness (from a lender or investor not including the Guarantor or any Subsidiary of the Guarantor), then the applicable Lien shall be deemed to be included in this clause (5) if such Lien is created within a further 180 days after the end of such first 180-exempt industrial development day period;
(6) Liens securing obligations issued by a State, territory or pollution control bonds possession of the United States, or other similar bonds any political subdivision of any of the foregoing, or the District of Columbia, to finance the acquisition or construction of property, and on which the interest is not, in the opinion of tax counsel of recognized standing or in accordance with a ruling issued pursuant to by the Internal Revenue Service, includible in gross income of the holder by reason of Section 103(b103(a) of the Internal Revenue Code of 1986, as amendedamended (or any successor to such provision), as in effect at the time of the issuance of such obligations; or
(7) Any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to finance in the foregoing clauses (1) through (6), inclusive; provided, however, that such extension, renewal or replacement Lien shall (A) be limited to all or any part of the purchase price same property that secured the Lien extended, renewed or replaced (plus improvements on such property) and (B) not exceed the principal amount of or the cost Indebtedness, plus any premium of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used fee payable in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding replacement, so secured at the time of any Debt such extension, renewal or other obligation secured by any Lien permitted by clauses (a) through (x) replacement. For purposes of this Section; providedSection 1009 and Section 1008, that an "acquisition" of property (including real, personal or intangible property or shares of capital stock or Indebtedness) shall include any transaction or series of transactions by which the Guarantor or a Restricted Subsidiary acquires, directly or indirectly, an interest, or an additional interest (to the extent thereof), in such Debt property, including an acquisition through merger or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets consolidation with, or property an acquisition of the Borrower or any of its Restricted Subsidiariesan interest in, other than Liens on the Voting Stock of the Borrower a Person owning an interest in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableproperty.
Appears in 1 contract
Samples: Indenture (Bowater Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , sellers of goods, carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which (A) secure payment of obligations charges, claims, demands, or levies which are not more than 45 30 days past due overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (C) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $5,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(dv) easements Liens (includingother than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances unemployment insurance and other restrictions, charges or encumbrances (whether or not recorded) affecting types of social security and other similar obligations incurred in the use ordinary course of real propertybusiness;
(evi) Liens existing on the Closing Date and described (including pledges or deposits) securing obligations in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts surety bonds (other than contracts for borrowed moneyappeal bonds), bids, trade contracts, public or statutory obligations, surety and appeal bondsleases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) Liens pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on assets the ordinary cause of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jviii) zoning restrictions, building codes, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lix) Permitted Encumbrances;
(x) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01(iii) and Liens securing Debt of Foreign Subsidiaries permitted under Section 7.01 (xviii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or license entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries;
(xxi) Liens existing on the Closing Date and listed on Schedule 7.02 hereto; provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Holdings and its Subsidiaries (other than accessions to and the proceeds of the property or property assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(xxii) Liens solely on any cxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods; and
(xxiv) Liens on deemed to exist in the Voting Stock of ordinary course in connection with Cash Equivalents; and
(xxv) other Liens incurred by the Borrower in and its Restricted Subsidiaries, so long as Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000.
Appears in 1 contract
Restriction on Liens. The Borrower Borrowers will not, nor and will it -------------------- not permit any of its Restricted their respective Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower Borrowers or any such Restricted Subsidiary whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (includingincluding sales of accounts receivable or notes with recourse to a Borrower or its Subsidiaries) or assign any right to receive income, without limitationor file or permit the filing of any financing statement under the Uniform Commercial Code as in effect in any applicable jurisdiction or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 5.09 shall not prevent the -------- creation, their Voting Stock)incurrence, except:assumption or existence of the following (with such Liens described below being herein referred to as "Permitted Liens"):
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(ei) Liens existing on the Closing Date and date of this Agreement, described in Schedule 6.07 5.09 hereto, securing Debt outstanding on the date of this Agreement and then in an aggregate principal or face amount not exceeding $500,000;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(gii) any vendor’s Liens, purchase money Liens or any other Lien security interest (including the interest of a lessor under a Capital Lease) on any property capital asset of any Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or asset acquired by the Borrower or any fair market value as of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof)of the asset covered thereby to such Borrower; provided, thatthat the aggregate amount of Debt -------- secured by such Liens which is incurred by SEG as a result of the Acquisition does not exceed $2,000,000 in the aggregate at any one time outstanding and that all other Debt secured by such Liens does not exceed $1,000,000 in the aggregate at any one time outstanding, in any such case and provided -------- further, that no such Lien purchase money security interest shall extend to or ------- cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of such Borrower other than the related asset;
(iii) any corporation or other entity Lien existing at on an asset prior to the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the acquisition thereof by a Borrower or any of its Restricted Subsidiaries Subsidiary and not created in contemplation of such eventacquisition;
(miv) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into created by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financingsLoan Documents;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens Lien arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by any of the foregoing clauses (a) through (x) of this Section; provided, provided that the principal amount -------- of such Debt or other obligation is not increased and such Debt is not secured by any additional assets;
(zvi) other Liens on assets for taxes not yet due or property Liens for taxes being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock management of the Borrower Parent Company) have been established;
(vii) Liens imposed by law securing the charges, claims, demands or levies of carriers, warehousemen, mechanics and other like persons which were incurred in its Restricted Subsidiaries, so long as the ordinary course of business which (A) do not in the aggregate materially detract from the value of the property or assets subject to such Lien or materially impair the use thereof in the operation of the business of any Borrower or Subsidiary or (B) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such lien;
(viii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations secured incurred in the ordinary course of business;
(ix) Liens constituting easements, rights of way and similar charges, title defects or other irregularities with respect to real property which do not result in a Material Adverse Effect and which do not affect the marketability of the property subject thereto;
(x) leases or subleases of any of the Borrowers' owned or leased real property which leases or subleases do not result in a Material Adverse Effect or the retention of title by such a lessor which has entered into an operating lease with a Borrower; and
(xi) Liens arising from the rendering of a final judgment or order against any Borrower which does not exceed the greater give rise to any Event of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableDefault.
Appears in 1 contract
Samples: Credit Agreement (GTS Duratek Inc)
Restriction on Liens. The Borrower will not, nor will it -------------------- permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’', landlords’', warehousemen’s 's and mechanics’ ' liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s 's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 6.08 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s 's Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, -------- in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “"financial” " or “"physical transaction”");
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to -------- extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) with respect to PPL Interstate Energy Company, any Liens other than Liens securing Debt of PPL Interstate Energy Company;
(q) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qr) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(rs) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(st) Liens securing letters of credit entered into in the ordinary course of business;
(tu) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uv) Liens in addition to those permitted by clauses (a) through (tu) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(vw) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(wx) Liens arising in respect of the Caribou Investments Joint Venture; provided, that the aggregate value of the obligations secured by such Liens -------- shall not at any time exceed $500,000,000;
(y) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate -------- fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(xz) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yaa) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (xaa) of this Section; provided, that such Debt or other obligation is -------- not increased and is not secured by any additional assets;
(zbb) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: 364 Day Credit Agreement (PPL Corp)
Restriction on Liens. The Borrower will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) any Liens for taxescreated by the this Agreement and all other Loan Documents;
(b) any purchase money security interest on any capital asset of the Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower; provided, that no such purchase money security interest shall extend to or cover any property or asset of the Borrower other than the related asset;
(c) Liens securing Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (i) with respect to Liens securing Taxes, assessments or governmental charges, such Taxes are not yet due payable pursuant to subsection (C)(2) above, or which are being contested in good faith not required to be paid, or (ii) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and by appropriate proceedings the like, such Liens are unfiled and for which adequate reserves in accordance with GAAP shall have no other action has been set aside on its bookstaken to enforce the same;
(bd) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(e) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;proceedings; and
(f) judgment Liens arising from judgments which secure payment zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Restricted Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Liens described in any of the following clauses (collectively, “Permitted Liens”):
(i) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, refinancings, replacements, substitutions renewals or extensions thereof; provided that (A) any such Restricted Subsidiary modification, refinancing, replacement, substitution, renewal or extension of any such Lien does not extend to any additional property other than (includingx) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, without limitationand (B) the refinancing, their Voting Stockreplacement, substitution, modification, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens (A) created by the Collateral Documents securing the Obligations, Permitted Equal Priority Refinancing Debt or Permitted Junior Priority Refinancing Debt, (B) securing Indebtedness incurred in reliance upon Section 7.01(xvii)(A) or (B) or (C) securing any Permitted Incremental Equivalent Debt to the extent, in the case of this clause (C), except:permitted to be secured by a Lien hereunder;
(aiii) Liens for taxesTaxes, assessments or and other governmental charges or levies not yet due or (A) which are being contested in good faith and by appropriate proceedings and not overdue for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course a period of business which secure payment of obligations not more than 45 30 days past due or (B) which are being contested in good faith by appropriate proceedings and for as to which adequate reserves have been established in accordance with GAAP shall have been set aside on its booksGAAP;
(civ) Liens arising out imposed by Law securing the charges, claims, demands or levies of pledges or deposits under worker’s compensation lawslandlords, unemployment insurancecarriers, old age pensionssuppliers, or other social security or retirement benefitswarehousemen, or similar legislation;
(d) easements (includingmaterialmen, without limitationworkmen, reciprocal easement agreements and utility agreements)mechanics, rights-of-way, covenants, consents, reservations, encroachments, variances carriers and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) like Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments imposed by Law which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature were incurred in the ordinary course of business by and which (A) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to (B) are otherwise being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves (in the purchase and good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of any commodity the property or assets subject to such Lien or (including power purchase and sale agreements, any commodity hedge or derivative regardless C) secure amounts not overdue for a period of whether any such transaction is a “financial” or “physical transaction”)more than 30 days;
(iv) Liens on assets (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or judgments), customs bonds, statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Restricted Subsidiaries arising out maintain adequate reserves in accordance with GAAP, which proceedings for orders entered in connection with such proceedings have the effect of obligations preventing the forfeiture or duties sale of the property subject to any municipality such Lien;
(vii) pledges or public authority with respect deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;
(viii) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any franchisesuch insurance policy, grant, license, permit or certificate.in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(jix) Liens arising solely by virtue of any contract, statutory or common Law provision, in each case relating to banker’s liens, rights reserved of setoff or similar rights, in each case incurred in the ordinary course of business, including Liens of a collection bank arising under Section 4-210 of the UCC on items in the course of collection;
(x) non-exclusive licenses or sublicenses of Intellectual Property, or leases or subleases, granted to third Persons by the Borrower or vested its Restricted Subsidiaries or to the Borrower or its Restricted Subsidiaries by a third Person in the ordinary course of business not interfering in any municipality material respect with the business of any Restricted Group Company;
(xi) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or public authority to control other minor encumbrances or regulate irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any asset property in the operation or business of the Borrower or any of its Restricted Subsidiaries or the value of such property for the purpose of such business;
(xii) Liens arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with court proceedings or judgments with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xiv) Liens securing Indebtedness permitted to use be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date, provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender), Section 7.01(iii) (so long as such Liens attach to the property or asset in a manner so financed within 180 days of the related incurrence of Indebtedness) and Section 7.01(vi) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced, provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender) and which does not materially impair the use extend to any assets other than those of such Person;
(xv) any Lien existing on any asset for of any Person at the purposes for time such Person becomes a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which it does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvi) any Lien on any asset (other than on the Equity Interests of one or more Subsidiaries) of any Person existing at the time such Person is held merged or consolidated with or into the Borrower or a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvii) any Lien existing on any asset (other than on the Equity Interests of one or more Subsidiaries) prior to the acquisition thereof by the Borrower or any a Restricted Subsidiary of its Restricted Subsidiariesthe Borrower and not created in contemplation of such acquisition;
(kxviii) irregularities in or deficiencies of title to Liens solely on any asset which do not materially adversely affect the use of such property xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture and exclusive licenses and sublicenses permitted under Section 7.05(xvi)(A) or Section 7.06(a)(xvi) or (xxv), to the normal course of its businessextent such licenses and sublicenses constitute a Lien;
(lxix) any Lien (a) Liens on any property or asset cash and Cash Equivalents securing Swap Obligations and (b) Liens on cash deposits securing Swap Obligations of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries Subsidiary under Swap Agreements to the extent entered into with a financial institution that is not a Swap Creditor in order to manage interest rate, foreign currency exchange rate and commodity pricing risks and not created for speculative purposes, in contemplation an aggregate amount not to exceed the greater of such event(x) $10,000,000 and (y) 0.5% of Consolidated Total Assets at any time outstanding;
(mxx) any Lien on any asset securing Debt incurred or assumed for the purpose Liens in favor of financing all or any part customs and revenue authorities arising as a matter of the cost Law to secure payment of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens customs duties in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, goods in the ordinary course of business;
(pxxi) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Restricted Group Company in the ordinary course of business in accordance with past practices of such Restricted Group Company;
(xxii) licenses or leases of the properties of any Restricted Group Company, and the rights of ordinary-course lessees described in Section 9-321 of the UCC, in each case entered into in the ordinary course of such Restricted Group Company’s business so long as such licenses or Leases and rights do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Restricted Group Company or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xxiii) Liens on or reservations with respect to governmental which may arise as a result of municipal and zoning codes and ordinances, building and other licensesland use laws imposed by any Governmental Authority which are not violated in any material respect by existing improvements or the present use or occupancy of any Real Property, permitsor in the case of any Real Property subject to a mortgage, franchisesencumbrances disclosed in the title insurance policy issued to, consents and allowances; any reasonably approved by, the Collateral Agent;
(xxiv) Liens on in respect of the licensing of patents, patent licenses and other patent rightscopyrights, patent applicationstrademarks, trade names, trademarksother indications of origin, copyrights, claims, credits, choses in action domain names and other intangible forms of intellectual property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(txxv) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property any interest or assets title of a Special Purpose Subsidiary arising in connection with lessor, sub-lessor, licensor or sub-licensor under any Existing Synthetic Lease Financing lease, sublease, license or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens sublicense entered into by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for as a licensee or sublicensee (A) existing on the benefit date hereof or (B) in the ordinary course of the Borrower or any such Restricted Subsidiaryits business;
(wxxvi) Liens on property which in the case of (A) any Subsidiary that is not a wholly-owned Subsidiary or (B) the subject Equity Interests in any Person that is not a Subsidiary, any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth in the Organizational Documents of a Capital Lease Obligation designating the Borrower such Subsidiary or such other Person or any of its Restricted Subsidiaries as lessee and all rightrelated joint venture, title and interest of the Borrower shareholders’ or any of its Restricted Subsidiaries in and to such property and in, to and under such lease similar agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxxvii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of (x) $250,000,000 or 1525,000,000 and (y) 1.0% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTotal Assets at any time outstanding.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) of including the Borrower or any Subsidiary of the Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or and other governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(bA) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 that 90 days past due or delinquent, (B) which are being contested in good faith by appropriate proceedings and for as to which adequate reserves have been established in accordance with GAAP shall have been set aside on its booksor (C) which are not otherwise required to be paid in accordance with Section 6.04;
(civ) Liens arising out securing the charges, claims, demands or levies of pledges or deposits under worker’s compensation lawslandlords, unemployment insurancecarriers, old age pensionssuppliers, or other social security or retirement benefitswarehousemen, or similar legislation;
(d) easements (includingmaterialmen, without limitationworkmen, reciprocal easement agreements and utility agreements)mechanics, rights-of-way, covenants, consents, reservations, encroachments, variances carriers and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) like Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments imposed by Law which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature were incurred in the ordinary course of business by and which (A) do not, individually or in the Borrower or any of its Restricted Subsidiariesaggregate, including Liens to secure obligations under agreements relating to materially detract from the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets value of the Borrower and its Restricted Subsidiaries arising out property or assets which are the subject of obligations such Lien or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested materially impair the use thereof in any municipality or public authority to control or regulate any asset the operation of the business of the Borrower or any of its Restricted Subsidiaries or to use such asset (B) which are being contested in a manner which does not materially impair the use of such asset for the purposes good faith by appropriate proceedings diligently pursued for which it is held adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, indemnity, warranty, release, performance and return-of-money bonds and other similar obligations or with respect to other regulatory requirements, letters of credit, bankers’ acceptances issued and completion guarantees incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP;
(vii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted SubsidiariesSubsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other goods;
(kviii) irregularities pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in or deficiencies the ordinary course of title business;
(ix) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any asset which do such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(x) Liens arising solely by virtue of any statutory or common Law provision relating to banker’s liens, rights of setoff or similar rights, in each case incurred in the ordinary course of business;
(xi) licenses, sublicenses, leases or subleases granted to third Persons or to the Borrower or its Subsidiaries by the Borrower and its Subsidiaries in the ordinary course of business not materially adversely affect interfering in any material respect with the business of any Group Company and not otherwise prohibited by Section 7.05(xiv);
(xii) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of such property by or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Restricted Subsidiaries in or the normal course value of its such property for the purpose of such business;
(lxiii) Liens arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xvi) Liens securing Indebtedness permitted to be incurred under Section 7.01(i), (iii), (iv) and (v);
(xvii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxviii) any Lien on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) of any Person existing at the purpose of financing all time such Person is merged or any part consolidated with or into the Borrower or a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxix) rights any Lien existing on any asset (other than on the Equity Interests of lessees arising under leases entered into one or more Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture;
(xxi) Liens on cash and Cash Equivalents securing Swap Obligations;
(xxii) Liens on any assets or Equity Interests of a Foreign Subsidiary of the Borrower securing Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.01(xii);
(xxiii) Liens in favor of customs and revenue authorities arising as lessor, a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(pxxiv) any Liens that might be deemed to exist on or reservations with respect assets subject to governmental and other licensesa repurchase agreement permitted hereunder, permits, franchises, consents and allowances; any if such Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareare deemed to exist solely because of the existence of such repurchase agreement;
(qxxv) any Liens on automobilescreated solely by the deposit of, busesand solely on, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used cash deposited to consummate the Tender Offer or to defease the Existing Notes in connection with any favor of the foregoingtrustee under the indenture governing the Existing Notes or the holders of the Existing Notes;
(rxxvi) Liens in favor of Holdings, the Borrower or any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposesSubsidiary Guarantor;
(sxxvii) Liens securing letters of credit entered into security given to a public or private utility or any other governmental authority in the ordinary course of business;
(txxviii) Liens granted on the capital stock of Subsidiaries that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising given in connection with any Existing Synthetic Lease Financing the issuance of Indebtedness, (ii) relating to pooled deposit or the lease sweep accounts of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower Holdings or any of its Restricted Subsidiaries as lessee to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and all right, title its Subsidiaries or (iii) relating to purchase orders and interest other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value ordinary course of the obligations subject to such Liens shall not at any time exceed $500,000,000business;
(xxxix) Liens on property which is the subject (i) of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest a collection bank arising under Section 4-210 of the Borrower or any UCC on items in the course of its Restricted Subsidiaries in and collection, (ii) attaching to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt commodity trading accounts or other obligation secured by any Lien permitted by clauses (a) through (x) commodities brokerage accounts incurred in the ordinary course of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.business and
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Parent Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Liens described in any of the following clauses (collectively, "PERMITTED LIENS"):
(i) Liens existing on the Closing Date and listed on SCHEDULE 7.02 hereto, PROVIDED that such Restricted Subsidiary Liens shall secure only those obligations, which they secure on the date hereof (includingand permitted extensions, without limitation, their Voting Stockrenewals and refinancings of such obligations), except:and shall not subsequently apply to any other property or assets of the Parent Borrower and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(aii) Liens created by the Collateral Documents;
(iii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Parent Borrower) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets, which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Parent Borrower or any of its Subsidiaries, or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under SECTION 8.01; PROVIDED that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds US$5,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(evi) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, public or statutory obligations, surety and appeal bonds, performance bonds unemployment insurance and other types of social security and other similar obligations of a like nature incurred in the ordinary course of business;
(vii) Liens securing obligations in respect of surety bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business; PROVIDED that in the case of Liens on cash and Cash Equivalents, the U.S. Dollar Amount of all cash and Cash Equivalents subject to such Liens may at no time exceed US$1,000,000 in the aggregate;
(viii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance in the ordinary course of business;
(ix) zoning restrictions, building codes, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business by of the Parent Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lx) Permitted Encumbrances;
(xi) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under SECTION 7.01(iv); -141-
(xii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Parent Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxiii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Parent Borrower or any part a Subsidiary of the cost Parent Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiv) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Parent Borrower or a Subsidiary of the Parent Borrower and not created in contemplation of such acquisition;
(xv) any Lien securing Refinancing Debt in respect of any Debt of the Parent Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Parent Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses CLAUSES (ai), (xi), (xii), (xiii) through or (xxiv) of this SectionSECTION 7.02; provided, PROVIDED that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxvi) Liens arising solely by virtue of any statutory or common or civil Law provision relating to banker's liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvii) licenses, leases or subleases granted to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company other than a PropCo;
(xviii) Liens on assets or property of (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to SECTION 7.01(viii);
(xix) Liens solely on any xxxx xxxxxxx money deposits made by the Parent Borrower or any of its Restricted SubsidiariesSubsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xx) Liens upon specific items or inventory or other goods and proceeds of the Parent Borrower or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other goods;
(xxi) Undetermined or inchoate Liens (including priority claims) which have not at such time been filed or registered in accordance with applicable Law;
(xxii) Liens resulting from the right reserved to or vested in any Governmental Authority by any statutory provision, or by the terms of any lease, license, franchise, grant or permit of any Group Company, to terminate any such lease, license, franchise, grant or permit, or to require annual or other than payments as a condition to the continuance thereof;
(xxiii) Liens securing the Replacement Revolver; and
(xxiv) Liens on the Voting Stock assets transferred to a Securitization Entity or an asset of the Borrower a Securitization Entity, in its Restricted Subsidiarieseither case, so long incurred as the aggregate value part of the obligations secured a Permitted Securitization Transaction permitted by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableSECTION 7.05(xiii).
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it -------------------- not permit any of its Restricted Subsidiaries to, to at any time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by the Borrower or any of its Subsidiaries or assign or subordinate any present or future right to receive assets of except:
(i) any kind Liens created by a Capital Lease or operating lease, but only as to the leased property;
(real or personal, tangible or intangibleii) any purchase money security interest on any capital asset of the Borrower or any of its Subsidiaries if such Restricted purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower or such Subsidiary; provided, that no such purchase money security -------- interest shall extend to or cover any property or asset of the Borrower or such Subsidiary (including, without limitation, their Voting Stock), except:other than the related asset;
(aiii) Liens for taxessecuring Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided with respect to Taxes, assessments -------- or governmental charges or levies or claims or demands secured by such Liens, payment of which is not yet due or which are being contested in good faith and at the time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksSection 6.2;
(biv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws; and
(v) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensionsproceedings, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that claims are not Restricted Subsidiaries for the purpose in excess of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted available insurance coverage by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed than $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available500,000.
Appears in 1 contract
Samples: Credit Agreement (Microstrategy Inc)
Restriction on Liens. The Borrower will notCreate, nor will it permit any of its Restricted Subsidiaries toassume, create, incur, assume incur or suffer to exist any Lien upon on any Property or with respect to any property or assets asset of any kind (kind, real or personal, tangible or intangible) of the Borrower , now owned or hereafter acquired by it or assign or subordinate any such Restricted Subsidiary (including, without limitation, their Voting Stock), present or future right to receive assets except:
(a) Liens for securing Debt the existence or incurrence of which would not violate the financial covenants of Section 7.9;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet due payable, (B) with respect to Liens securing claims or which demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are being contested in good faith (1) unfiled and no other action has been taken to enforce the same and (2) the cumulative effect of all such Liens will not have a Material Adverse Effect, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its bookssuch Liens, payment is not at the time required;
(bc) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workers' compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(d) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real propertyproceedings;
(e) Liens existing zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in such Subsidiary or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such assetbusiness; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:and
(nf) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose such Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease to secure obligations of such property Subsidiary solely to the Borrower or assets through one or more other Synthetic Lease financings;
(v) Liens by any a Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: Credit Agreement (United Dominion Realty Trust Inc)
Restriction on Liens. The Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries Consolidated Subsidiary to, createcreate or assume any Indebtedness for money borrowed which is secured by a Lien on a Principal Property of any character, incurwhether owned at the date of this Indenture or hereafter acquired, assume of the Company or suffer any Consolidated Subsidiary, without making effective provision whereby the Securities of each series then Outstanding (together with, if the Company shall so determine, any other Indebtedness of the Company or any Subsidiary then existing or thereafter created which is not subordinate to exist the Securities) shall be secured by such Lien equally and ratably with (or prior to) such secured Indebtedness (for the purpose of providing such equal and ratable security, the Outstanding Securities of any Lien series of Original Issue Discount Security shall be such portion of the principal amount as may be specified in the terms of that series that would be payable upon or acceleration of the Maturity thereof at the time of such determination), so long as such secured Indebtedness shall be so secured, unless, after giving effect thereto, the amount of all Exempted Debt will not exceed 15% of Consolidated Net Tangible Assets; provided, however, that the foregoing restriction shall not apply to Indebtedness secured by any of the following:
(1) with respect to any property or assets series of any kind (real or personalSecurities, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 heretofirst date of issuance of Securities of such series;
(f2) judgment Liens arising from judgments which secure payment on assets of legal obligations that would not constitute a Default under Section 7.01Person existing at the time such Person becomes a Consolidated Subsidiary or is merged into or consolidated with the Company or a Subsidiary or at the time of a purchase, lease or other acquisition of the assets of such Person as an entirety or substantially as an entirety to the Company or a Subsidiary;
(g3) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof assets existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower Company or any of its Restricted Subsidiariesa Consolidated Subsidiary, including or Liens to secure obligations under agreements relating to the purchase and sale payment of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of such assets or the cost of constructing, equipping to secure Indebtedness incurred or improving property;
(o) rights of lessees arising under leases entered into guaranteed by the Borrower Company or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries a Consolidated Subsidiary for the purpose of securing financing the obligations purchase price of such Subsidiaries;
(u) Liens assets or, in addition to those permitted by clauses (a) through (t) on the property case of real property, improvements thereon, which indebtedness is incurred or assets guaranteed prior to, at the time of a Special Purpose Subsidiary arising or within 360 days after such acquisition, or in connection with any Existing Synthetic Lease Financing or the lease case of real property, completion of such property improvements, repairs, construction or assets through one additions or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary alterations or commencement of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which full operations thereof, whichever is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a securitylater; provided, however, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on each such Lien shall at all times be confined solely to the asset or assets so acquired or to the real property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee improved and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out the principal amount of Indebtedness secured by each such Lien shall at no time exceed the cost of the refinancing, extension, renewal assets in question to the Company or refunding of any Debt or other obligation secured by any Lien permitted by clauses the respective Subsidiary (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property including the principal amount of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations Indebtedness secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.thereby);
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(i) Any Lien on any property acquired or constructed by the Borrower or a Subsidiary and created contemporaneously with, or within 24 months after, such acquisition or the completion of such construction and commencement of full operation of such property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such property, or (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not spread to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.10 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Borrower or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Wholly-Owned Consolidated Subsidiary;
(d) easements (includingAny Lien created by the Loan Documents, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges the Pro Rata Credit Agreement or encumbrances (whether or not recorded) affecting the use of real property;1999 Loan Documents; and
(e) Liens existing on Secured Debt of the Closing Date Borrower and described its Subsidiaries which would otherwise be prohibited by the foregoing restrictions (not including Secured Debt permitted to be secured under subsections (a) through (d) above) so long as the sum of any such Secured Debt hereafter incurred and outstanding at the time plus Attributable Debt of the Borrower and any Subsidiaries in Schedule 6.07 hereto;
respect of Sale and Leaseback Transactions hereafter entered into and outstanding at the time (fexcluding Attributable Debt incurred in respect of any Sale and Leaseback Transaction (i) judgment Liens arising from judgments which secure payment entered into in respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after a Subsidiary not more than 24 months prior to the date hereof existing on any such property Sale and Leaseback Transaction is entered into or asset at (ii) if the time Borrower, within 120 days before or after such Sale and Leaseback Transaction is entered into applies an amount equal to the greater of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset A) the net proceeds of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property so sold and leased back or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or (B) the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such property at the obligations subject date such arrangement is entered into to such Liens shall not the retirement of Secured Debt (other than at maturity or pursuant to any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of owed to the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens a Wholly-Owned Consolidated Subsidiary) does not at the time exceed the greater of $250,000,000 or 155% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableNet Tangible Assets.
Appears in 1 contract
Samples: Term Loan Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower will notCreate, nor will it permit any of its Restricted Subsidiaries toassume, create, incur, assume incur or suffer to exist any Lien upon on any Property or with respect to any property or assets asset of any kind (kind, real or personal, tangible or intangible) of the Borrower , now owned or hereafter acquired by it or assign or subordinate any such Restricted Subsidiary (including, without limitation, their Voting Stock), present or future right to receive assets except:
(a) Liens for securing Debt the existence or incurrence of which would not violate the financial covenants of Section 7.9;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect -------- to Liens securing state and local taxes, such taxes are not yet due payable, (B) with respect to Liens securing claims or which demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are being contested in good faith (1) unfiled and no other action has been taken to enforce the same and (2) the cumulative effect of all such Liens will not have a Material Adverse Effect, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its bookssuch Liens, payment is not at the time required;
(bc) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workers' compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(d) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real propertyproceedings;
(e) Liens existing zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in such Subsidiary or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such assetbusiness; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:and
(nf) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose such Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease to secure obligations of such property Subsidiary solely to the Borrower or assets through one or more other Synthetic Lease financings;
(v) Liens by any a Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: Credit Agreement (United Dominion Realty Trust Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including the Borrower, any Restricted Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the Indebtedness secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which that are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside to the extent required (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’suppliers, warehousemen’s and , materialmen, workmen, mechanics’ liens , carriers and other similar liens arising like Liens imposed by Law which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Restricted Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall GAAP, which proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out of pledges (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or and other similar legislationobligations incurred in the ordinary course of business;
(dvi) easements Liens securing obligations in respect of surety bonds (including, without limitation, reciprocal easement agreements and utility agreementsother than appeal bonds), rightsbids, trade contracts, leases, government contracts, performance and return-of-way, covenants, consents, reservations, encroachments, variances money bonds and other restrictions, charges or encumbrances (whether or not recorded) affecting similar obligations incurred in the use ordinary course of real propertybusiness;
(evii) Liens existing on the Closing Date upon specific items or inventory or other goods and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment proceeds of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the date hereof existing on any account of such property Person to facilitate the shipment or asset at the time storage of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to inventory or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may begoods;
(hviii) Lienspledges or deposits of cash and Cash Equivalents securing deductibles, deposits and/or self-insurance, co-payment, co-insurance, retentions and similar arrangements obligations to secure providers of insurance in the performance ordinary cause of bidsbusiness;
(ix) Liens on (A) incurred premiums, tenders dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under state insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(viii);
(x) Liens arising solely by virtue of any statutory or contracts (other than contracts for borrowed money)common Law provision relating to banker’s liens, public rights of set-off or statutory obligationssimilar rights, surety and appeal bonds, performance bonds and other obligations of a like nature in each case incurred in the ordinary course of business by business;
(xi) licenses, leases or subleases granted to third Persons or to the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of Subsidiaries by the Borrower and its Restricted Subsidiaries arising out in the ordinary course of obligations or duties to business not interfering in any municipality or public authority material respect with respect to the business of any franchise, grant, license, permit or certificate.Group Company and not otherwise prohibited by Section 7.05(xiv);
(jxii) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any municipality property in the operation or public authority to control or regulate any asset business of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use value of such asset property for the purposes for which it is held by the Borrower or any purpose of its Restricted Subsidiariessuch business;
(kxiii) irregularities Liens arising from precautionary Uniform Commercial Code financing statements in any jurisdiction regarding, and any interest or deficiencies title of title a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of lessor, sublessor, lessees or sublessees securing Operating Leases;
(xv) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods in the ordinary course of business;
(xvi) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks and other financial institutions not given in connection with incurrence of Indebtedness, (ii) related to pool deposit of Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business; provided that Domestic Subsidiaries shall enter into such arrangements solely with Domestic Subsidiaries and Foreign Subsidiaries shall enter into such arrangements solely with Foreign Subsidiaries, or (iii) relating to purchase orders and other similar agreements entered in the ordinary course with customers;
(xvii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xviii) Liens securing Indebtedness permitted to be incurred under Section 7.01(i), Section 7.01(iii) and Section 7.01(v);
(xix) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), or existing on assets acquired, pursuant to a Permitted Business Acquisition to the extent the Liens on such assets secure Indebtedness permitted by Section 7.01(iv); provided that such Liens attach at all times only to the same assets that such Liens (other than after-acquired property that is (i) affixed or incorporated into the property covered by such Lien, (ii) after-acquired property subject to a Lien securing Indebtedness permitted under Section 7.01(iv), the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any asset property to which such requirement would not have applied but for such acquisition) and (iii) the proceeds and products thereof) attached to, and secure only, the same Indebtedness or obligations (or any Permitted Refinancing incurred to Refinance such Indebtedness) that such Liens secured, immediately prior to such Permitted Business Acquisition;
(xx) Liens securing Indebtedness permitted by Section 7.01(xiv) or (xv); provided that (w) the security agreements creating such Liens are substantially the same as the Collateral Documents, (x) such Liens do not materially adversely affect extend to any assets that are not Collateral, (y) the use holders of any such property Indebtedness (or an agent acting on their behalf) have entered into an intercreditor agreement reasonably satisfactory to the Administrative Agent and (z) in the case of Liens securing Permitted Refinancing incurred to Refinance Indebtedness previously incurred pursuant to Section 7.01(xiv) or (xv), such Liens do not rank prior to the Liens securing the Indebtedness so refinanced;
(xxi) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in the normal course connection with any letter of its businessintent or purchase agreement with respect to a Permitted Business Acquisition or a Permitted Joint Venture;
(lxxii) any Lien Liens on cash and Cash Equivalents securing Swap Obligations owing to one or more Persons who are not Swap Creditors;
(xxiii) Liens on any property assets or asset Equity Interests of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into a Foreign Subsidiary of the Borrower or any securing Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.01(xi);
(xxiv) other Liens incurred by the Borrower and its Restricted Subsidiaries the aggregate fair market value of the property subject to such Liens, and the aggregate amount of the obligations secured thereby, do not created exceed the greater of (x) $60,000,000 and (y) 2.25% of Consolidated Total Assets as of the last day of the most recent period of four consecutive fiscal quarters in contemplation respect of such eventwhich financial statements have been delivered pursuant to Section 6.01, in each case at any time outstanding;
(mxxv) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches Liens deemed to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens exist in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Investments in repurchase agreements permitted under Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property7.06;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uxxvi) Liens in addition to those permitted by clauses (a) through (t) on the property or assets favor of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary financial institutions pursuant to sponsorship, clearinghouse and/or settlement arrangements, provided that no Lien permitted will extend to cover property of the Borrower or any Restricted Subsidiary for thereof other than that held by the benefit other party to such arrangement and the amount of such Lien shall not exceed the amount owed by the Borrower or the Restricted Subsidiary under such arrangement;
(xxvii) Liens in favor of customers of the Borrower or any such Restricted Subsidiary;Subsidiary over settlement, reserve or similar accounts granted in the ordinary course of business; and
(wxxviii) Liens on property which is the subject of accounts receivable, Securitization Assets and related assets incurred in connection with a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableQualified Securitization Facility.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt; provided that the foregoing covenant shall not apply to exist the following:
(a) (i) any Lien on any property in connection with a Sale and Leaseback Transaction permitted by Section 5.14, (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary and not created in anticipation of such acquisition which acquisition is not otherwise prohibited by this Agreement, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not attach to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.15 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out any Lien securing Debt of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Subsidiary owing to a Subsidiary Guarantor;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting any Lien created by the use of real propertySenior Loan Documents;
(e) Liens existing any Lien created or permitted by the Second Priority Collateral Documents with respect to the Second Priority Debt Obligations in favor of the Second Priority Debt Parties; provided that such Lien is created simultaneously with or after an equivalent Lien under the Senior Collateral Documents on the Closing Date applicable Collateral and described in Schedule 6.07 heretois subject to the Collateral Trust and Intercreditor Agreement, and any Lien on the proceeds of such Collateral permitted by the Collateral Trust and Intercreditor Agreement;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01the Synthetic Leases permitted pursuant to Sections 5.20(e)(i) and 5.29;
(g) any vendor’s Liens, purchase money Liens or any other Lien identified on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereofSchedule 5.15(g); provided, thathowever, in any that such case no such Lien shall extend Liens do not attach to or cover any other asset of the Borrower or property other than that identified in such Restricted Subsidiaries, as the case may beSchedule;
(h) Liens, deposits and/or similar arrangements to secure the performance Liens in respect of bids, tenders or contracts (other than contracts for borrowed moneysecured Debt permitted under Sections 5.20(g), public or statutory obligations, surety (h) and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”i);
(i) Liens in respect of Debt or Attributable Debt permitted under Sections 5.20(k), (l), (m), (n) and (o) so long as such Liens attach only to (i) the equipment subject to such financing, (ii) the property to which they attach on the Initial Borrowing Date (or in the case of any lease which is reclassified as a Capital Lease, any property subject to such lease on the Initial Borrowing Date), or (iii) the property or assets of the Borrower and its Restricted Subsidiaries arising out of obligations constructed, developed or duties to any municipality or public authority purchased with respect to any franchise, grant, license, permit or certificate.such financing;
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property Net Cash Proceeds of Reduction Events allocated to the 10.5% Note Obligations or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created Second Priority Debt Obligations in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection accordance with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued Collateral Trust and Intercreditor Agreement, which Lien arises pursuant to Section 103(b) 10.14 of the Internal Revenue Code of 1986, as amended, to finance all 10.5% Note Indenture or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, equivalent provisions in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Second Priority Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableDocuments.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as carriers’claims, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising demands or levies of landlords (but in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) all cases excluding any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by Collateral arising under the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed moneyiStar Sale/Leaseback Documents), public or statutory obligationscarriers, surety and appeal bondswarehousemen, performance bonds mechanics, sellers of goods, carriers and other obligations of a like nature persons which were incurred in the ordinary course of business by and which (A) secure charges, claims, demands or levies which are not more than 30 days overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the Borrower or any of its Restricted Subsidiariesaggregate, including Liens to secure obligations under agreements relating to materially detract from the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets value of the Borrower and its Restricted Subsidiaries arising out property or assets which are the subject of obligations such Lien or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested materially impair the use thereof in any municipality or public authority to control or regulate any asset the operation of the business of the Borrower or any of its Restricted Subsidiaries Subsidiaries;
(iv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or other property (other than proceeds of insurance payable by reason of such judgments, decrees or attachments) the fair value of which exceeds $10,000,000 is deposited or delivered to secure any such judgment, decree or award, or any appeal bond in respect thereof;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens (including pledges or deposits) securing obligations in respect of surety bonds (other than appeal bonds), bids, trade contracts, public or statutory obligations, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business;
(vii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on the ordinary cause of business;
(viii) zoning restrictions, building codes, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use such asset of property or other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in a manner which does not the aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lix) Permitted Encumbrances;
(x) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01(iii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or License entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower any its Subsidiaries;
(xxi) Liens existing on the Closing Date and listed on Schedule 7.02 hereto; provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of the Borrower and its Subsidiaries (other than accessions to and the proceeds of the property or property assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods;
(xxiv) Liens on the Voting Stock any assets or Equity Interests of a Foreign Subsidiary of the Borrower securing Debt of such Foreign Subsidiary incurred pursuant to Section 7.01(xiv);
(xxv) Liens deemed to exist in connection with repurchase obligations permitted to be incurred pursuant to Section 7.01(xxi) or in connection with Cash Equivalents;
(xxvi) Liens arising under the iStar Sale/Leaseback Documents consisting of options, whether or not then exercisable, to purchase Bowling Equipment of the Borrower and/or one or more of its Restricted Subsidiaries, so long as ; and
(xxvii) other Liens incurred by the Borrower and its Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Consolidated Parties -------------------- will, or will not, nor will it permit any of its Restricted their respective Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of any Consolidated Party whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable or notes with recourse to any Consolidated Party) or assign any right to receive income, or file or permit the Borrower filing of any financing statement under the Uniform Commercial Code as in effect in any applicable jurisdiction or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 7.02 shall not prevent the -------- ------------ creation, incurrence, assumption or existence of the following (with such Restricted Subsidiary (including, without limitation, their Voting Stock), except:Liens described below being herein referred to as "Permitted Liens"): ---------------
(ai) Liens existing on the Effective Date and listed on Schedule -------- 7.02 hereto, in each case without giving effect to any extensions or ---- renewals thereof;
(ii) Liens created by the Collateral Documents;
(iii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are 104 being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers, materialmen and other similar liens arising like Persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; ------------
(vi) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law), not securing Debt or Derivatives Obligations, which are incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers' compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and bonds (other than appeal bonds), bids, leases, government contracts, performance bonds and return-of-money bonds, warranty requirements and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of any Consolidated Party or the value of such property for the purpose of such business;
(viii) Permitted Encumbrances and Vessel Permitted Liens on assets any property; provided that such Vessel Permitted Liens (A) do not, -------- individually or in the aggregate, materially detract from the value of the Borrower and its Restricted Subsidiaries arising out property or assets which are the subject of obligations such Lien or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested materially impair the use thereof in any municipality or public authority to control or regulate any asset the operation of the business of the Borrower or any of its Restricted Subsidiaries or to use such asset Subsidiaries, (B) are contested in a manner good faith by appropriate proceedings diligently pursued, which does not materially impair the use proceedings shall have commenced within 90 days of such asset for the purposes for which it is held by the Borrower or any Subsidiary obtaining knowledge of its Restricted Subsidiariessuch Vessel Permitted Lien arising and have the effect of preventing the forfeiture or sale of the property or assets subject to such Lien or (C) arise and are from time to time discharged in the ordinary course of business consistent with past practice;
(kix) irregularities in or deficiencies of title Liens securing Debt permitted to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;be incurred under Section ------- 7.01(iii); ---------
(lx) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxi) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such assetevent; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:105
(nxii) any Liens in connection with Lien existing on any asset prior to the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into acquisition thereof by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit and not created in contemplation of the Borrower or any such Restricted Subsidiaryacquisition;
(wxiii) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens Lien arising out of the refinancing, extension, renewal or refunding of any Debt of the Borrower or other obligation any Subsidiary of the Borrower secured by any Lien permitted by clauses clause (a) through i), (ix), (x), (xi) or ---------- ---- --- ---- (xii) of this Section; provided, provided that such Debt or other obligation is not increased and is not ----- -------- secured by any additional assets;
(zxiv) other Liens on assets cash and cash equivalents securing Derivatives Obligations owing to one or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as more Persons who are not Derivatives Creditors; provided that the aggregate value amount of the obligations secured by cash and cash equivalents subject to -------- such Liens does may at no time exceed $10,000,000;
(xv) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement; and
(xvi) licenses, leases or subleases (but excluding leases or subleases of Vessels, Fishing Rights or Permits or Approvals evidencing or representing Fishing Rights) granted to third Persons not exceed interfering in any material respect with the greater business of $250,000,000 or 15% of the total consolidated assets of the Borrower and its any Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableParty.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit not at any of its Restricted Subsidiaries to, time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) any Liens for taxescreated by the this Agreement and all other Loan Documents;
(b) any purchase money security interest on any capital asset of the Borrower if such purchase money security interest attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to the Borrower; provided, that the aggregate amount of Debt secured by all such Liens does not exceed $150,000 in the aggregate at any one time outstanding and provided, that no such purchase money security interest shall extend to or cover any property or asset of the Borrower other than the related asset;
(c) Liens securing Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (i) with respect to Liens securing Taxes, assessments or governmental charges, such Taxes are not yet due payable pursuant to subsection (C)(2) above, or which are being contested in good faith not required to be paid, or (ii) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and by appropriate proceedings the like, such Liens are unfiled and for which adequate reserves in accordance with GAAP shall have no other action has been set aside on its bookstaken to enforce the same;
(bd) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws;
(e) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;proceedings; and
(f) judgment Liens arising from judgments which secure payment zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic the Lower Mt. Bethel Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
(aa) Liens granted to the Administrative Agent pursuant to Section 2.09(a)(iii) on cash collateral securing Letter of Credit Liabilities.
Appears in 1 contract
Restriction on Liens. The Borrower Xxxxxxxxx will not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Xxxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:the “Permitted Liens”):
(a) Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Xxxxxxxxx and its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(b) existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Xxxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(bc) existing and future Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (i) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are material to the business of Xxxxxxxxx or any of its Subsidiaries and which are the subject of such Lien or materially impair the use thereof in the operation of the business of Xxxxxxxxx or any of its Subsidiaries or (ii) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its books;
(c) Liens arising out the effect of pledges preventing the forfeiture or deposits under worker’s compensation laws, unemployment insurance, old age pensions, sale of the property or other social security or retirement benefits, or similar legislationassets subject to such Lien;
(d) easements Liens arising from judgments, decrees or attachments (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or securing of appeal bonds with respect thereto) in circumstances not recorded) affecting the use constituting an Event of real propertyDefault under Section 8.01;
(e) existing and future Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public any Liens imposed by ERISA or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature pursuant to any Environmental Law) incurred or deposits made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the issuance performance of tax-exempt industrial development or pollution control tenders, statutory obligations, surety bonds or (other than appeal bonds), bids, leases, government contracts, performance and return–of–money bonds and other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, obligations incurred in the ordinary course of business;
(pf) existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title not securing Indebtedness which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of Xxxxxxxxx or any of its Subsidiaries or the value of such property for the purpose of such business;
(g) Liens on or reservations securing (i) the secured Indebtedness permitted to be incurred under Section 7.01(c)(i) and (ii) Purchase Money Indebtedness permitted to be incurred under Section 7.01(d); provided that, with respect to governmental clause (ii), such Lien does not at any time encumber any property other than the property financed by such Indebtedness.
(h) any Lien existing on any asset of any Person at the time such Person becomes a Subsidiary of Xxxxxxxxx; provided that (i) such Liens were not created in contemplation of such event and (ii) such Liens do not extend to any assets other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwarethan those affected thereby prior to such event;
(qi) any Lien on any asset of any Person existing at the time such Person is merged or consolidated with or into Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens on automobiles, buses, trucks were not created in contemplation of such event and (ii) such Liens do not extend to any assets other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoingthan those affected thereby prior to such event;
(rj) any Lien existing on any asset prior to the acquisition thereof by Xxxxxxxxx or a Subsidiary of Xxxxxxxxx; provided that (i) such Liens on furniture were not created in contemplation of such event and furnishings; and computers and data processing, data storage, data transmission, telecommunications and (ii) such Liens do not extend to any assets other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposesthan those affected thereby prior to such event;
(sk) existing and future Liens securing letters arising solely by virtue of credit entered into any statutory or common law provision relating to banker’s liens, rights of set–off or similar rights, in each case incurred in the ordinary course of business;; and
(tl) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to other than those permitted by clauses clause (a) through clause (tk) of this Section 7.02 on the property or assets of a Special Purpose Subsidiary arising Xxxxxxxxx and its Subsidiaries now owned or hereafter acquired by it, or on any income or rights in connection with any Existing Synthetic Lease Financing or the lease respect thereof, not in excess of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect to any property revenues, whether now owned or assets of any kind (real or personal, tangible or intangible) of hereafter acquired other than the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(ai) Liens pursuant to any Loan Document;
(ii) Liens existing on the Closing Date, and if the Indebtedness secured by such Lien is modified, replaced, renewed or extended with any Permitted Refinancing Indebtedness, any Lien on the same collateral securing such Permitted Refinancing Indebtedness;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due delinquent or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its books(or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time to time in their respective jurisdictions of organization);
(biv) Liens imposed by lawlandlords’, such as carriers’, landlordswarehousemen’s, mechanics’, warehousemen’s and mechanics’ liens and materialmen’s, repairmen’s, workmen’s, suppliers’, processors’, storage or other similar liens like Liens arising in the ordinary course of business which secure payment are securing amounts not overdue for a period of obligations not more than 45 60 days past due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted, if adequate reserves in accordance with GAAP shall have been set aside respect thereto are maintained on its booksthe books of the applicable Person;
(cv) Liens arising out of pledges or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other social security or retirement benefitssimilar laws or regulations, or similar other than any Lien imposed by ERISA and other social security legislation;
(dvi) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges pledges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of tenders, bids, tenders or trade contracts and leases (other than contracts for borrowed moneyIndebtedness), public or statutory obligationsobligations and surety, surety and appeal bondsappeal, bid, performance or payment bonds and other obligations of a like nature incurred in the ordinary course of business;
(vii) easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or 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 by of the Borrower or any Group Companies, taken as a whole;
(viii) Liens securing judgments not constituting an Event of its Restricted Subsidiaries, including Liens to secure obligations Default under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”Section 8.01(h);
(iix) Liens securing Indebtedness permitted under Section 7.02(vii); provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, except that individual financings of equipment provided by one lender of the type permitted under Section 7.02(vii) may be cross collateralized to other financings of equipment provided by such lender of the type permitted under Section 7.02(vii) and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(x) Liens on assets property of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity Person existing at the time such corporation or entity Person is acquired, merged into or consolidated or amalgamated with or into the U.S. Borrower or any of its Restricted Subsidiaries and other Group Company or becomes a Group Company; provided that such Liens were not created in contemplation of such eventmerger, consolidation or Investment and do not extend to any assets other than those of the Person merged into or consolidated with the U.S. Borrower or any other Group Company or acquired by the U.S. Borrower or any other Group Company, and the applicable Indebtedness secured by such Lien is permitted under Section 7.02(viii);
(mxi) any Lien on any asset securing Debt incurred or assumed for the purpose Liens in favor of financing all or any part customs and revenue authorities arising as a matter of the cost law to secure payment of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens customs duties in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, goods in the ordinary course of business;
(pxii) Liens consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Disposition would have been permitted on the date of the creation of such Lien; provided that such Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareencumber only the applicable assets pending consummation of the Disposition;
(qxiii) any Liens on automobiles(A) leases, buseslicenses, trucks and subleases or sublicenses granted to other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into Persons in the ordinary course of businessbusiness which do not (x) interfere in any material respect with the business of the Group Companies, taken as a whole, or (y) secure any Indebtedness, and (B) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Group Company;
(txiv) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such SubsidiariesPermitted Encumbrances;
(uxv) Liens in addition to those permitted by clauses (a) through (t) on the property any assets or assets Equity Interests of a Special Purpose Foreign Subsidiary arising in connection with any Existing Synthetic Lease Financing or of the lease U.S. Borrower securing Indebtedness of such property or assets through one or more other Synthetic Lease financingsForeign Subsidiary incurred pursuant to Section 7.02(ix);
(vxvi) Liens by any Wholly-Owned Subsidiary securing obligations of the U.S. Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiaryand its Subsidiaries under Sale/Leaseback Transactions permitted under Section 7.16;
(wxvii) (A) statutory and common law rights of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerages and (B) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction and covering only the items being collected upon;
(xviii) (A) Liens that are contractual rights of setoff relating to purchase orders entered into with customers of such Person in the ordinary course of its business and (B) Liens on property goods the purchase price of which is financed by a documentary letter of credit issued for the subject account of a Capital Lease Obligation designating the U.S. Borrower or any of its Restricted Subsidiaries as lessee and all rightSubsidiaries, title and interest provided that such Lien secures only the obligations of the U.S. Borrower or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 7.02;
(xix) Liens securing Indebtedness represented by financed insurance premiums in the ordinary course of business consistent with past practice, provided that such Liens do not extend to any property or assets other than the corresponding insurance policies being financed;
(xx) Liens arising from precautionary UCC financing statements or similar filings made in respect of operating leases entered into by the U.S. Borrower or any of its Restricted Subsidiaries in and to such property and in, to and Subsidiaries;
(xxi) Liens securing Indebtedness permitted under such lease agreement, whether or not such lease agreement is intended as a securitySection 7.02(xii); provided, provided that the aggregate fair market value of the obligations subject to such Liens shall do not at any time exceed $500,000,000encumber any property other than the Auction Rate Securities;
(xxxii) other Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries securing Indebtedness outstanding in and an aggregate principal amount not to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a securityexceed $200,000,000;
(yxxiii) Liens arising out existing or deemed to exist in connection with Permitted Securitizations; and
(xxiv) any security interest or set-off arrangements entered into by any Foreign Borrower or its Subsidiaries in the ordinary course of its banking arrangements which arise from the general banking conditions (algemene bankvoorwaarden) (including, for the avoidance of doubt, in relation to a Foreign Borrower which is incorporated under the laws of the refinancingNetherlands, extension, renewal or refunding any security created pursuant to the general conditions of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of a bank operating in the Borrower or any of its Restricted Subsidiaries, other than Liens Netherlands based on the Voting Stock of general conditions drawn up by the Borrower in its Restricted Subsidiaries, so long as Netherlands Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) and the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableConsumers Union (Consumentenbond)).
Appears in 1 contract
Restriction on Liens. The Borrower will notCreate, nor will it incur, assume or permit to exist, or permit any of its Restricted Subsidiaries to, Subsidiary to create, incur, assume or suffer permit to exist exist, any Lien upon or with respect to on any property or assets of any kind (real asset now owned or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock)hereafter acquired by it, except:
(ai) Liens imposed by law for taxes, taxes or assessments or governmental charges or levies that are not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance compliance with GAAP shall have been set aside on its booksSection 6.01(b);
(bii) carriers', landlords', warehousemen's, mechanics', materialmen's, repairmen's, maritime and other like Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksbusiness;
(ciii) Liens arising out pledges and deposits made in the ordinary course of pledges or deposits under worker’s compensation lawsbusiness in compliance with workers' compensation, unemployment insurance, old age pensions, or insurance and other social security laws or retirement benefits, or similar legislationregulations;
(div) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money)trade contracts, public or leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred nature, in each case in the ordinary course of business;
(v) minor irregularities in title, easements, zoning restrictions, rights-of-way, restrictive covenants, servitudes, permits, reservations, exceptions, conditions, covenants and similar encumbrances on property imposed by law or arising in the ordinary course of business that do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of the Borrower and the Subsidiaries taken as a whole;
(vi) any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof (or an improvement or accession thereto or proceeds therefrom); provided that (A) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (B) such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(vii) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (B) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary other than improvements and accessions thereto and proceeds (including proceeds constituting receivables and general intangibles) thereof and (C) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;
(viii) Liens on real property or equipment acquired, constructed or improved by the Borrower or any of its Restricted SubsidiariesSubsidiaries securing Indebtedness incurred to finance such acquisition, including construction or improvement; provided that (A) such Liens and the Indebtedness secured thereby are incurred prior to secure obligations under agreements relating or within 90 days after such acquisition or the completion of such construction or improvement, (B) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (C) such Liens shall not apply to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge other property or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower or any of its Subsidiaries other than improvements and its Restricted Subsidiaries accessions thereto and proceeds (including proceeds constituting receivables and general intangibles) thereof;
(ix) Liens arising out as a result of (A) the sale or transfer of (1) oil, gas or other minerals in place for a period of time until, or in an amount that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (2) any other interest in property of the character commonly referred to as a "production payment", or (B) any sale, transfer or other disposition of, or obligation to deliver, crude oil, condensate, natural gas liquids, and/or natural gas, in consideration of advance payments, pursuant to forward sales arrangements, prepaid contracts or other similar arrangements, provided that all the proceeds of any transaction described under this clause (ix) shall have been applied to prepay Loans promptly following receipt and that the aggregate amount of all the proceeds of all such transactions described under this clause (ix) entered into after the date hereof shall not exceed $1,000,000,000;
(x) any obligations or duties affecting any property of the Borrower or its Subsidiaries to any municipality or public authority with respect to any franchise, grant, license, license or permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does that do not materially impair the use of such asset property for the purposes for which it is held by the Borrower or any of its Restricted Subsidiariesheld;
(kxi) irregularities in or deficiencies Liens resulting from operation of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations law with respect to governmental and other licenses, permits, franchises, consents and allowancesany judgments or orders not constituting an Unmatured Event of Default; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;and
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower securing obligations in its Restricted Subsidiaries, so long as the an aggregate value of the obligations secured by such Liens does amount not exceed the greater in excess of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available5,000,000 at any time.
Appears in 1 contract
Restriction on Liens. The (a) Said Borrower will not, nor and will it not permit any of its Restricted Domestic Subsidiaries to, to at any time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by said Borrower or any of its Domestic Subsidiaries or assign or subordinate any present or future right to receive assets except as follows or otherwise permitted herein:
(i) Liens existing on the date of this Agreement and described on Schedule 6.8(a) hereto securing Debt outstanding on the date of this Agreement;
(ii) any kind Liens created by the Collateral Documents;
(real iii) any purchase money security interest on, or personalcapitalized lease with respect to, tangible or intangible) any capital asset of the Borrower or any of its Subsidiaries if such Restricted purchase money security interest or capitalized lease attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to said Borrower or such Subsidiary; provided, that the aggregate principal amount of Debt secured by all such Liens does not exceed $1,000,000.00 in the aggregate principal amount at any one time outstanding and provided, that no such purchase money security interest shall extend to or cover any property or asset of said Borrower or such Subsidiary (includingother than the related asset, without limitation, their Voting Stock), except:accessions thereto and proceeds thereof;
(aiv) Liens for taxessecuring Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (A) with respect to Liens securing state and local Taxes, such Taxes are not yet due payable or which are being contested in good faith faith, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or are being contested in good faith, or (C) with respect to Taxes, assessments or governmental charges or levies or claims or demands secured by appropriate proceedings and for such Liens, payment of which adequate reserves is not at the time required by Section 6.2, or are being contested in accordance with GAAP shall have been set aside on its booksgood faith;
(bv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen’s compensation, unemployment insurance, social security and other like laws, or in connection with security deposits;
(vi) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksproceedings;
(cvii) Liens arising out of pledges or deposits interests under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, licenses granted in the ordinary course of business;
(pviii) any Liens on or reservations with respect securing Debt which is subordinated in priority of lien and right of payment to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareDebt to the Bank pursuant to a subordination agreement to which the Bank is a party;
(qix) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any incurred from the financing of insurance premiums of the foregoing;
(r) any Liens on furniture Borrowers and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such their Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to extent such Liens shall not at any time exceed $500,000,000;are typical in insurance premium financing; and
(x) Liens on property any interests of lessees in excess furniture or equipment, or subleases of excess real estate, under leases in which any Borrower or Subsidiary is the subject of one or more leases designating lessor.
(b) Except as contained in the agreements described on Schedule 6.8(b) hereto, said Borrower or will not, and will not permit any of its Restricted Domestic Subsidiaries as lessee and all rightto, title and at any time enter into any covenant or other agreement that restricts or is intended to restrict it from pledging, granting a security interest of the Borrower in, mortgaging, encumbering, or otherwise creating a Lien on, any of its Restricted Subsidiaries intellectual property or stock in and to such property and in, to and under any such lease agreementForeign Subsidiary, whether now existing or not any such lease agreement is intended as a security;
(y) Liens owned or hereafter arising out or acquired, in favor of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableBank.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Consolidated Subsidiaries to, create, incur, assume or suffer to exist be created, assumed or incurred or to exist, any Lien upon or with respect to any of their property or assets, whether now owned or hereafter acquired other than:
(a) Liens arising after the date hereof pursuant to Section 6.9 of the Dixix Xxxe Purchase Agreement;
(b) Liens against assets of any kind (real or personal, tangible or intangible) of the Borrower or any a Consolidated Subsidiary securing Debt of such Restricted Subsidiary Person, so long as (includingi) the aggregate amount of all such secured Debt does not exceed $5,000,000, without limitation, their Voting Stockand (ii) such secured Debt is otherwise permitted by Section 6.02(a)(vi), except:in the case of the Borrower, or Section 6.02(a)(v), in the case of a Consolidated Subsidiary;
(ac) Liens imputed to Capital Leases under which a Consolidated Subsidiary is the lessee, so long as the Debt of such Consolidated Subsidiary in respect of such Capital Lease is permitted by Section 6.02(a)(v);
(d) Liens on property of any Consolidated Subsidiary that attach concurrently with such Consolidated Subsidiary's purchase thereof, and securing only Debt of such Consolidated Subsidiary permitted by Section 6.02(a)(v) and incurred to finance all or part of the purchase price of such property, and any extensions and renewals of such Liens so long as the Debt secured thereby is not greater than the Debt secured immediately prior to such extension and renewal and such Debt is permitted by Section 6.02(a)(v) at the time of such extension and renewal;
(e) Liens for taxes, assessments or governmental charges or levies if the same shall at the time not yet due be delinquent or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by lawthereafter may be paid without penalty, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in or the ordinary course validity of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings promptly initiated and for diligently conducted and as to which adequate reserves in accordance with GAAP shall have been set aside on its booksthe books of the Borrower in accordance with generally accepted accounting principles;
(cf) carriers', warehousemen's and mechanics' liens and other similar Liens arising out which arise in the ordinary course of business, do not materially impair the use or value of its properties or assets or the conduct of its business, and secure obligations that are not yet due and payable or are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and as to which adequate reserves shall have been set aside on the books of the Borrower in accordance with generally accepted accounting principles or as to which adequate bonds shall have been obtained;
(g) pledges or deposits to secure obligations under worker’s workmen's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, laws or similar legislationlegislation or to secure public or statutory obligations of the Borrower;
(dh) easements Liens created in favor of a Governmental Authority to secure partial, progress, advance or other contractual payments pursuant to any agreement or statute;
(includingi) attachment, without limitationjudgment and other similar Liens arising in connection with court proceedings, reciprocal easement agreements provided the execution or other enforcement of such Liens is effectively stayed and utility agreements)the claims secured thereby are being actively contested in good faith and by appropriate proceedings in such manner as not to have the property subject to such Liens forfeitable; and
(j) easements, rights-of-way, covenants, consents, reservations, exceptions, minor encroachments, variances restrictions and other restrictions, similar charges created or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by which in the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to aggregate do not materially interfere with the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets business operations of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchisetaken as a whole, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner and which does were not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance borrowing of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablemoney.
Appears in 1 contract
Samples: Credit Agreement (Kirby Corp)
Restriction on Liens. The Neither the Borrower will not, nor will it permit any of its Restricted Subsidiaries to, will create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) of including the Borrower or any such Restricted Subsidiary of the Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the UCC of any jurisdiction of a financing statement that names the Borrower or any of its Restricted Subsidiaries as debtor, or sign any security agreement authorizing any secured party thereunder to file such a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, and (B) the renewal, extension or modification of the obligations secured or benefited
(ii) by such Liens is permitted by Section 7.01;
(iii) Liens created by the Collateral Documents;
(iv) Liens for taxes, assessments or and other governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(bA) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 that 90 days past due or delinquent, (B) which are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established in accordance with GAAP which proceedings have the effect of preventing or delaying the forfeiture or sale of the property or assets subject to such Lien or (C) which are not otherwise required to be paid in accordance with Section 6.04;
(v) Liens imposed by Law securing the charges, claims, demands or levies of landlords, carriers, suppliers, warehousemen, materialmen, workmen, mechanics, carriers and other like Liens imposed by Law which were incurred in the ordinary course of business and which (A) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (B) which are not for sums overdue or are otherwise being contested in good faith by appropriate proceedings diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP;
(vi) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vii) Liens securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or judgments), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP shall GAAP, which proceedings for orders entered in connection with such proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property subject to any such Lien;
(cviii) pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in the ordinary course of business;
(ix) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(x) Liens arising out solely by virtue of pledges any contract, statutory or deposits under workercommon Law provision, in each case relating to banker’s compensation lawsliens, unemployment insurance, old age pensions, or other social security or retirement benefits, rights of setoff or similar legislationrights, in each case incurred in the ordinary course of business;
(dxi) easements licenses, sublicenses, leases or subleases of the properties of any Loan Party granted by such Loan Party to third parties or Affiliates, in each case entered into in the ordinary course of such Loan Party’s business so long as such licenses, sublicenses, leases or subleases do not, individually or in the aggregate, (includingi) interfere in any material respect with the ordinary conduct of the business of any Loan Party or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xii) zoning restrictions, without limitationbuilding codes, reciprocal easement agreements land use and utility agreements)other similar Laws and municipal ordinances, rights-of-easements, rights of way, licenses, reservations, covenants, consentsconditions, reservationswaivers, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting restrictions on the use of real propertyproperty or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Subsidiaries or the value of such property for the purpose of such business;
(exiii) Liens existing on the Closing Date arising from precautionary UCC financing statements regarding, and described in Schedule 6.07 heretoany interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(fxiv) judgment Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with courts proceedings or judgments which secure payment with respect thereto) in circumstances not constituting an Event of legal obligations that would not constitute a Default under Section 7.018.01;
(gxvi) Liens securing Indebtedness permitted to be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date), Section 7.01(iii) (so long as such Liens attach to the property or asset so financed within 180 days of the related incurrence of Indebtedness), Section 7.01(v) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced) and which does not extend to any assets other than those of such Person;
(xvii) any vendor’s Liens, purchase money Liens or Lien existing on any asset of any Person at the time such Person becomes a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person;
(xviii) any Lien on any property asset (other than on the Equity Interests of one or more Restricted Subsidiaries of the Borrower) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Restricted Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person;
(xix) any Lien existing on any asset acquired (other than on the Equity Interests of one or more Restricted Subsidiaries of the Borrower) prior to the acquisition thereof by the Borrower or a Restricted Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries after the date hereof existing in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture;
(xxi) Liens on cash and Cash Equivalents securing Swap Obligations;
(xxii) Liens on (1) any such property or asset at the time assets of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset a Foreign Subsidiary of the Borrower or that is a Restricted Subsidiary and (2) Liens on any Equity Interests of a Foreign Subsidiary of the Borrower that is a Restricted Subsidiary not constituting Collateral, in each case securing Indebtedness of such Foreign Subsidiary that is a Restricted Subsidiaries, as the case may be;Subsidiary incurred pursuant to Section 7.01(xii),
(hxxiii) Liens, deposits and/or similar arrangements Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the performance importation of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred goods in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ixxiv) Liens that might be deemed to exist on assets subject to a repurchase agreement constituting a Cash Equivalent permitted hereunder, if such Liens are deemed to exist solely because of the Borrower and its Restricted Subsidiaries existence of such repurchase agreement;
(xxv) Liens arising out of obligations conditional sale, title retention, consignment or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset similar arrangements for the purposes for which it is held by the Borrower or any sale of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property goods entered into by the Borrower or any of its Restricted Subsidiaries in the normal ordinary course of its business;
(l) any Lien on any property or asset business in accordance with past practices of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(wxxvi) Receipt of progress payments and advancements from customers in the ordinary course of business to the extent the same creates a Lien on the related inventory and proceeds thereof;
(xxvii) Liens securing Indebtedness incurred in reliance on Section 7.01(xx) and 7.01(xxi); and
(xxviii) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that assets securing obligations if the aggregate fair market value amount of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation liabilities secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens thereby does not exceed the greater of $250,000,000 15,000,000 or 157.5% of the total consolidated assets Consolidated EBITDA on a Pro-Forma Basis of the Borrower and its Consolidated Subsidiaries as for the four-quarter period in respect of the most recent fiscal quarter of the Borrower for which financial statements are availablehave been delivered ended immediately prior to the date of such determination at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Medassets Inc)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Company) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:"PERMITTED LIENS"):
(ai) Liens existing on the Closing Date and listed on SCHEDULE 7.02 hereto and any modifications, replacements, renewals or extensions thereof; PROVIDED that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under SECTION 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by SECTION 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet more than 30 days over due or which may be paid without penalty or that are being contested in good faith and by appropriate proceedings and for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP shall have been set aside on its booksGAAP;
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’suppliers, warehousemen’s and , materialmen, workmen, mechanics’ liens , carriers and other similar liens arising like Liens imposed by Law (including without limitation under Article 2 of the UCC) which were incurred in the ordinary course of business and which secure payment of obligations (A) are for amounts not more than 45 30 days past due overdue or which may be paid without penalty or (B) which are being contested in good faith by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, Performance Guaranties not constituting Guaranty Obligations, performance and return-of-money bonds and other similar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Company and its Subsidiaries maintain adequate reserves in accordance with GAAP shall have been set aside on its booksGAAP; PROVIDED that the -------- aggregate amount of the obligations or other liabilities secured by such Liens, together with the aggregate amount of outstanding deposits permitted under SECTION 7.06(A)(IX), do not exceed $10,000,000 at any time;
(cvii) Liens arising out of pledges upon specific items or deposits under worker’s compensation laws, unemployment insurance, old age pensions, inventory or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements goods and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting proceeds of the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower Company or any of its Restricted Subsidiaries after securing such Person's obligations in respect of bankers' acceptances or documentary letters of credit issued or created for the date hereof existing on any account of such property Person to facilitate the shipment or asset at the time storage of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to inventory or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may begoods;
(hviii) Lienspledges or deposits of cash and Cash Equivalents securing deductibles, deposits and/or self-insurance, co-payment, co-insurance, retentions or similar arrangements obligations to secure providers of insurance in the performance ordinary course of bidsbusiness;
(ix) Liens on (A) incurred premiums, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety dividends and appeal bonds, performance bonds rebates and other obligations identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to SECTION 7.01(IX);
(x) Liens arising solely by virtue of a like nature any statutory or common Law provision relating to banker's liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business business;
(xi) licenses, leases or subleases granted to third Persons or to the Company or its Subsidiaries by the Borrower or Company and its Subsidiaries in the ordinary course of business not interfering in any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to material respect with the purchase and sale business of any commodity (including power purchase Group Company and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”not otherwise prohibited by SECTION 7.05(XIV);
(ixii) Liens zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on assets the use of property or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchiseaggregate, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower Company or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lxiii) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under SECTION 8.01;
(xvi) Liens securing Indebtedness permitted to be incurred under SECTION 7.01(I), (III), (IV) and (V);
(xvii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries Company and not created in contemplation of such event;
(mxviii) any Lien on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) of any Person existing at the purpose of financing all time such Person is merged or any part consolidated with or into the Company or a Subsidiary of the cost Company and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxix) rights any Lien existing on any asset (other than on the Equity Interests of lessees arising under leases entered into one or more Subsidiaries) prior to the acquisition thereof by the Borrower Company or a Subsidiary of the Company and not created in contemplation of such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money deposits made by the Company or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any letter of the foregoingintent or purchase agreement with respect to a Permitted Business Acquisition or a Permitted Joint Venture;
(rxxi) any Liens on furniture cash and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens Cash Equivalents securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition Swap Obligations owing to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or Persons who are not such lease agreement is intended as a securitySwap Creditors; provided, PROVIDED that the aggregate fair market value amount of the obligations all cash and Cash Equivalents subject to such Liens shall not may at any no time exceed $500,000,0002,000,000;
(xxxii) Liens on property which is any assets or Equity Interests of a Foreign Subsidiary of the subject Company securing Indebtedness of such Foreign Subsidiary incurred pursuant to SECTION 7.01(XII);
(xxiii) Liens securing Sale/Leaseback Transactions permitted under SECTION 7.13;
(xxiv) Liens on assets of one or more leases designating the Borrower or any of its Restricted Project Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a securitysecuring Project Non-Recourse Debt permitted by SECTION 7.01(XV);
(yxxv) Liens arising out that might be deemed to exist on assets subject to a repurchase agreement constituting a Cash Equivalent permitted hereunder, if such Liens are deemed to exist solely because of the refinancing, extension, renewal or refunding existence of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Sectionsuch repurchase agreement; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;and
(zxxvi) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as securing Indebtedness permitted under SECTION 7.01 if the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000 at any time.
Appears in 1 contract
Restriction on Liens. The (a) Said Borrower will not, nor and will it not permit any of its Restricted Domestic Subsidiaries to, to at any time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or asset now owned or hereafter acquired by said Borrower or any of its Domestic Subsidiaries or assign or subordinate any present or future right to receive assets except as follows or otherwise permitted herein:
(i) Liens existing on the date of this Agreement and described on Schedule 6.8(a) hereto securing Debt outstanding on the date of this Agreement;
(ii) any kind Liens created by the Collateral Documents;
(real iii) any purchase money security interest on, or personalcapitalized lease with respect to, tangible or intangible) any capital asset of the Borrower or any of its Subsidiaries if such Restricted purchase money security interest or capitalized lease attaches to such capital asset concurrently with the acquisition thereof and if the Debt secured by such purchase money security interest does not exceed 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset covered thereby to said Borrower or such Subsidiary; provided, that the aggregate principal amount of Debt secured by all such Liens does not exceed $1,000,000.00 in the aggregate principal amount at any one time outstanding and provided, that no such purchase money security interest shall extend to or cover any property or asset of said Borrower or such Subsidiary (includingother than the related asset, without limitation, their Voting Stock), except:accessions thereto and proceeds thereof;
(aiv) Liens for taxessecuring Taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided (A) with respect to Liens securing state and local Taxes, such Taxes are not yet due payable or which are being contested in good faith faith, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such Liens are unfiled and no other action has been taken to enforce the same, or are being contested in good faith, or (C) with respect to Taxes, assessments or governmental charges or levies or claims or demands secured by appropriate proceedings and for such Liens, payment of which adequate reserves is not at the time required by Section 6.2, or are being contested in accordance with GAAP shall have been set aside on its booksgood faith;
(bv) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with workmen's compensation, unemployment insurance, social security and other like laws, or in connection with security deposits;
(vi) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksproceedings;
(cvii) Liens arising out of pledges or deposits interests under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, licenses granted in the ordinary course of business;
(pviii) any Liens on or reservations with respect securing Debt which is subordinated in priority of lien and right of payment to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareDebt to the Bank pursuant to a subordination agreement to which the Bank is a party;
(qix) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any incurred from the financing of insurance premiums of the foregoing;
(r) any Liens on furniture Borrowers and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such their Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to extent such Liens shall not at any time exceed $500,000,000;are typical in insurance premium financing; and
(x) Liens on property any interests of lessees in excess furniture or equipment, or subleases of excess real estate, under leases in which any Borrower or Subsidiary is the subject of one or more leases designating lessor.
(b) Except as contained in the agreements described on Schedule 6.8(b) hereto, said Borrower or will not, and will not permit any of its Restricted Domestic Subsidiaries as lessee and all rightto, title and at any time enter into any covenant or other agreement that restricts or is intended to restrict it from pledging, granting a security interest of the Borrower in, mortgaging, encumbering, or otherwise creating a Lien on, any of its Restricted Subsidiaries intellectual property or stock in and to such property and in, to and under any such lease agreementForeign Subsidiary, whether now existing or not any such lease agreement is intended as a security;
(y) Liens owned or hereafter arising out or acquired, in favor of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableBank.
Appears in 1 contract
Restriction on Liens. The Borrower will notCreate, nor will it permit any of its Restricted Subsidiaries toassume, create, incur, assume incur or suffer to exist any Lien upon on any Property or with respect to any property or assets asset of any kind (kind, real or personal, tangible or intangible) of the Borrower , now owned or hereafter acquired by it or assign or subordinate any such Restricted Subsidiary (including, without limitation, their Voting Stock), present or future right to receive assets except:
(a) Liens for securing Funded Debt the existence or incurrence of which would not violate the financial covenants of Section 7.9;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet due payable, (B) with respect to Liens securing claims or which demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are being contested in good faith (1) unfiled and no other action has been taken to enforce the same and (2) the cumulative effect of all such Liens will not have a Material Adverse Effect, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its bookssuch Liens, payment is not at the time required;
(bc) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising not securing Debt which are incurred in the ordinary course of business which secure payment in connection with worker's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(d) any Lien arising pursuant to any order of obligations not more than 45 days past due attachment, distraint or which similar legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real propertyproceedings;
(e) Liens existing zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment use of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower other minor encumbrances or any irregularities of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner title which does do not materially impair the use of such asset for any property in the purposes for which it is held by operation or business of the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in such Subsidiary or deficiencies of title to any asset which do not materially adversely affect the use value of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such assetbusiness; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:and
(nf) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose such Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease to secure obligations of such property Subsidiary solely to the Borrower or assets through one or more other Synthetic Lease financings;
(v) Liens by any a Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Samples: 364 Day Credit Agreement (United Dominion Realty Trust Inc)
Restriction on Liens. The Borrower Company will notnot itself, nor and will it not permit any of its Restricted Subsidiaries Domestic Subsidiary to, create, incur, issue, assume or suffer to exist guarantee any Lien upon notes, bonds, debentures or with respect to other similar evidences of indebtedness for money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being hereinafter in this Section 1008 and Section 1009 called "Debt"), secured by pledge of, or mortgage or other lien on, any property Principal Domestic Manufacturing Property of the Company or assets any Domestic Subsidiary, or any shares of stock or Debt of any kind Domestic Subsidiary (real pledges, mortgages and other liens being hereinafter in this Section 1008 and Section 1009 called "Mortgage" or personal"Mortgages"), tangible or intangible) without effectively providing that the Securities of any series then Outstanding together with, if the Company shall so determine, any other Debt of the Borrower Company or such Domestic Subsidiary then existing or thereafter created which is not subordinate to such Securities, shall be secured equally and ratably with (or prior to) such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured Debt plus all Attributable Debt of the Company and its Domestic Subsidiaries in respect of sale and leaseback transactions as defined in Section 1009 would not exceed 15% of Consolidated Net Tangible Assets; provided, however, that this Section 1008 shall not apply to, and there shall be excluded from secured Debt in any such Restricted Subsidiary (includingcomputation under this Section 1008, without limitation, their Voting Stock), exceptDebt secured by:
(a1) Liens for taxesMortgages on property of, assessments or governmental charges on any shares of stock or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksDebt of, any corporation existing at the time such corporation becomes a Domestic Subsidiary;
(b2) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising Mortgages in favor of the ordinary course of business which secure payment of obligations not more than 45 days past due Company or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksany Domestic Subsidiary;
(c3) Liens arising out Mortgages in favor of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensionsthe United States of America, or any agency, department or other social security instrumentality thereof, to secure progress, advance or retirement benefits, other payments pursuant to any contract or similar legislationprovision of any statute;
(d4) easements (includingMortgages on property, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges shares of stock or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens Debt existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to including acquisition through merger or cover any other asset of the Borrower consolidation) or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance payment of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower all or any part of its Restricted Subsidiaries, including Liens the purchase price or construction cost thereof or to secure obligations under agreements relating to any Debt incurred prior to, at the purchase and sale of any commodity (including power purchase and sale agreementstime of, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of within 120 days after, the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use acquisition of such property by or shares or Debt or the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset completion of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed construction for the purpose of financing all or any part of the purchase price or construction cost thereof; and
(5) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of acquiring, constructing or improving such assetany Mortgage referred to in the foregoing clauses (1) to (4) inclusive; provided, that any (i) such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt replacement Mortgage shall be limited to all or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property a part of the Borrower same property, shares of stock or any of its Restricted SubsidiariesDebt that secured the Mortgage extended, other than Liens renewed or replaced (plus improvements on such property) and (ii) the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations debt secured by such Liens does Mortgage at such time is not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableincreased.
Appears in 1 contract
Samples: Indenture (Universal Foods Corp)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including the Borrower, any Restricted Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the Indebtedness secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which that are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside to the extent required (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’suppliers, warehousemen’s and , materialmen, workmen, mechanics’ liens , carriers and other similar liens arising like Liens imposed by Law which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Restricted Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall GAAP, which proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out of pledges (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or and other similar legislationobligations incurred in the ordinary course of business;
(dvi) easements Liens securing obligations in respect of surety bonds (including, without limitation, reciprocal easement agreements and utility agreementsother than appeal bonds), rightsbids, trade contracts, leases, government contracts, performance and return-of-way, covenants, consents, reservations, encroachments, variances money bonds and other restrictionssimilar obligations incurred in the ordinary course of business; provided that in the case of Liens pursuant to this subclause (vi) on cash and Cash Equivalents of Domestic Subsidiaries, charges or encumbrances (whether or not recorded) affecting the use amount of real propertyall cash and Cash Equivalents of Domestic Subsidiaries subject to such Liens may at no time exceed $15,000,000 in the aggregate;
(evii) Liens existing on the Closing Date upon specific items or inventory or other goods and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment proceeds of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the date hereof existing on any account of such property Person to facilitate the shipment or asset at the time storage of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to inventory or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may begoods;
(hviii) Lienspledges or deposits of cash and Cash Equivalents securing deductibles, deposits and/or self-insurance, co-payment, co-insurance, retentions and similar arrangements obligations to secure providers of insurance in the performance ordinary cause of bidsbusiness;
(ix) Liens on (A) incurred premiums, tenders dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under state insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(viii);
(x) Liens arising solely by virtue of any statutory or contracts (other than contracts for borrowed money)common Law provision relating to banker’s liens, public rights of set-off or statutory obligationssimilar rights, surety and appeal bonds, performance bonds and other obligations of a like nature in each case incurred in the ordinary course of business by business;
(xi) licenses, leases or subleases granted to third Persons or to the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of Subsidiaries by the Borrower and its Restricted Subsidiaries arising out in the ordinary course of obligations or duties to business not interfering in any municipality or public authority material respect with respect to the business of any franchise, grant, license, permit or certificate.Group Company and not otherwise prohibited by Section 7.05(xiv);
(jxii) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any municipality property in the operation or public authority to control or regulate any asset business of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use value of such asset property for the purposes for which it is held by the Borrower or any purpose of its Restricted Subsidiariessuch business;
(kxiii) irregularities Liens arising from precautionary Uniform Commercial Code financing statements in any jurisdiction regarding, and any interest or deficiencies title of title a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of lessor, sublessor, lessees or sublessees securing Operating Leases;
(xv) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods in the ordinary course of business;
(xvi) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks and other financial institutions not given in connection with incurrence of Indebtedness, (ii) related to pool deposit of Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business; provided that Domestic Subsidiaries shall enter into such arrangements solely with Domestic Subsidiaries and Foreign Subsidiaries shall enter into such arrangements solely with Foreign Subsidiaries, or (iii) relating to purchase orders and other similar agreements entered in the ordinary course with customers;
(xvii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or other property (other than proceeds of insurance payable by reason of such judgments, decrees or attachments) the fair value of which exceeds $25,000,000 is deposited or delivered to secure any such judgment, decree or award, or any appeal bond in respect thereof;
(xviii) Liens securing Indebtedness permitted to be incurred under Section 7.01 (i) and (iii);
(xix) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), or existing on assets acquired, pursuant to a Permitted Business Acquisition to the extent the Liens on such assets secure Indebtedness permitted by Section 7.01(iv); provided that such Liens attach at all times only to the same assets that such Liens (other than after-acquired property that is (i) affixed or incorporated into the property covered by such Lien, (ii) after-acquired property subject to a Lien securing Indebtedness permitted under Section 7.01(iv), the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any asset property to which such requirement would not have applied but for such acquisition) and (iii) the proceeds and products thereof) attached to, and secure only, the same Indebtedness or obligations (or any Permitted Refinancing incurred to Refinance such Indebtedness) that such Liens secured, immediately prior to such Permitted Business Acquisition;
(xx) Liens securing Indebtedness permitted by Section 7.01(xiv) or (xv); provided that (w) the security agreements creating such Liens are substantially the same as the Collateral Documents, (x) such Liens do not materially adversely affect extend to any assets that are not Collateral, (y) the use holders of any such property Indebtedness (or an agent acting on their behalf) have entered into an intercreditor agreement reasonably satisfactory to the Administrative Agent and (z) in the case of Liens securing Permitted Refinancing incurred to Refinance Indebtedness previously incurred pursuant to Section 7.01(xiv) or (xv), such Liens do not rank prior to the Liens securing the Indebtedness so refinanced;
(xxi) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in the normal course connection with any letter of its businessintent or purchase agreement with respect to a Permitted Business Acquisition or a Permitted Joint Venture;
(lxxii) any Lien Liens on any property cash and Cash Equivalents securing Swap Obligations owing to one or asset more Persons who are not Swap Creditors; provided that the aggregate amount of any corporation or other entity existing all cash and Cash Equivalents subject to such Liens may at the no time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventexceed $5,000,000;
(mxxiii) any Lien Liens on any asset securing Debt incurred assets or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets Equity Interests of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Foreign Subsidiary of the Borrower or any Restricted securing Indebtedness of such Foreign Subsidiary for the benefit of the Borrower or any such Restricted Subsidiaryincurred pursuant to Section 7.01(xi);
(wxxiv) Liens on property which is the subject of a Capital Lease Obligation designating securing Sale/Leaseback Transactions permitted under Section 7.10;
(xxv) other Liens incurred by the Borrower or any of and its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations property subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee Liens, and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations secured by such Liens does thereby, do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available60,000,000; and
(xxvi) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 7.06.
Appears in 1 contract
Restriction on Liens. The Borrower Company will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, incur, assume or suffer to exist any Lien upon any Operating Property or with respect to any property or assets of any kind (real or personal, tangible or intangible) Operating Asset of the Borrower Company or any such Restricted Subsidiary (includingSubsidiary, whether owned at the date of this Indenture or thereafter acquired, to secure any Indebtedness, without limitationmaking effective provision whereby the Debt Securities of each series then Outstanding (together with, their Voting Stockif the Company shall so determine, any other Indebtedness of the Company or any Subsidiary then existing or thereafter created which is not subordinate to the Debt Securities of each series then Outstanding) shall be secured by such Lien equally and ratably with (or prior to) any and all other Indebtedness secured by Liens together with all Attributable Debt of the Company and its Subsidiaries in respect of Sale and Lease-Back Transactions (other than the Sale and Lease-Back Transactions excluded from the prohibition of Section 1007 by clauses (2), except(3) and 4 thereof) would not exceed the greater of (i) 10% of Consolidated Net Tangible Assets of the Company, or (ii) $258,000,000; provided, however, that the foregoing restriction shall not apply to Indebtedness secured by any of the following:
(a1) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof by the Company or a Subsidiary, provided that (and not created in anticipation thereof); provided, that, in any such case no x) each such Lien shall extend at all times be confined solely to the asset or cover any other asset assets so acquired and (y) the principal amount of Indebtedness secured by each such Lien shall at no time exceed the cost of the Borrower assets in question to the Company or such Restricted Subsidiaries, as the case may berespective Subsidiary (including the principal amount of the Indebtedness secured thereby;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i2) Liens on assets property of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged into or consolidated with the company or amalgamated with a Subsidiary or into otherwise becomes a Subsidiary of the Borrower Company or any at the time of its Restricted Subsidiaries and not created in contemplation a sale, lease or other disposition of the properties of such eventcorporation (or a division thereof) as an entirety or substantially as an entirety to the company or a Subsidiary, provided that such Lien as a result of such merger, consolidation, sale, lease or other disposition is not extended to property owned by the Company or such Subsidiary immediately prior thereto;
(m3) Liens securing Indebtedness of a wholly-owned Subsidiary to the Company or to another wholly-owned Subsidiary;
(4) Liens on property to secure all or part of the cost of acquiring, substantially repairing or altering, constructing, developing or substantially improving such property, or to secure Indebtedness incurred to provide funds for any such purpose, provided that (i) such Lien on comes into existence not later than 360 days after the later of (a) the completion of the acquisition, substantial repair or alteration, construction, development or substantial improvement of such property or (b) the placing in operation of such property or of such property as so substantially repaired or altered, constructed, developed or substantially improved and (ii) the principal amount of Indebtedness secured by such Lien does not exceed the cost of such acquisition, repair, alteration, construction, development or improvement;
(5) Liens in favor of the United States of America or any asset securing Debt State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, to secure partial progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred or assumed for the purpose of financing all or any part of the purchase price or the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches the property subject to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:Liens;
(n6) any Liens incurred or assumed in connection with the an issuance of tax-revenue bonds the interest on which is exempt industrial development or pollution control bonds or other similar bonds issued from federal income tax pursuant to Section 103(b) section 103 and related sections of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o7) rights of lessees arising under leases entered into Liens on customer and other accounts receivable owned by the Borrower Company or any of its Restricted Subsidiaries as lessorSubsidiary; and
(8) any extension, renewal or replacement (or successive extension, renewals or replacements), in whole or in party, of any Lien referred to in the ordinary course foregoing Clauses (1) to (7), inclusive; provided, however, that the principal amount of business;
Indebtedness secured thereby and not otherwise authorized by said Clauses (p1) to (7), inclusive, shall not exceed the principal amount of Indebtedness, plus any Liens on premium or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used fee payable in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiariesreplacement, so long as secured at the aggregate value time of the obligations secured by such Liens does not exceed the greater of $250,000,000 extension, renewal or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablereplacement.
Appears in 1 contract
Samples: Indenture (Radioshack Corp)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect to any property revenues, whether now owned or assets of any kind (real or personal, tangible or intangible) of hereafter acquired other than the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(ai) Liens pursuant to any Loan Document;
(ii) Liens existing on the Closing Date and listed on Schedule 7.01 and if the Indebtedness secured by such Lien is modified, replaced, renewed or extended with any Permitted Refinancing Indebtedness, any Lien on the same collateral securing such Permitted Refinancing Indebtedness;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due delinquent or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its books(or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time to time in their respective jurisdictions of organization);
(biv) Liens imposed by lawlandlords’, such as carriers’, landlordswarehousemen’s, mechanics’, warehousemen’s and mechanics’ liens and materialmen’s, repairmen’s, workmen’s, suppliers’, processors’, storage or other similar liens like Liens arising in the ordinary course of business which secure payment are securing amounts not overdue for a period of obligations not more than 45 60 days past due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted, if adequate reserves in accordance with GAAP shall have been set aside respect thereto are maintained on its booksthe books of the applicable Person;
(cv) Liens arising out of pledges or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other social security or retirement benefitssimilar laws or regulations, or similar other than any Lien imposed by ERISA and other social security legislation;
(dvi) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges pledges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of tenders, bids, tenders or trade contracts and leases (other than contracts for borrowed moneyIndebtedness), public or statutory obligationsobligations and surety, surety and appeal bondsappeal, bid, performance or payment bonds and other obligations of a like nature incurred in the ordinary course of business;
(vii) easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or 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 Group Companies, taken as a whole;
(viii) Liens securing judgments not constituting an Event of Default under Section 8.01(h);
(ix) Liens securing Indebtedness permitted under Section 7.02(vii); provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, except that individual financings of equipment provided by one lender of the type permitted under Section 7.02(vii) may be cross collateralized to other financings of equipment provided by such lender of the type permitted under Section 7.02(vii), but shall not encumber the Collateral and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(x) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any other Group Company or becomes a Group Company; provided that such Liens do not encumber equity Interests of any Subsidiaries of such Person which would be required to be pledged as Collateral and were not created in contemplation of such merger, consolidation or Investment and do not extend to any assets other than those of the Person merged into or consolidated with the Borrower or any other Group Company or acquired by the Borrower or any of its Restricted Subsidiariesother Group Company, including Liens to secure obligations and the applicable Indebtedness secured by such Lien is permitted under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”Section 7.02(viii);
(ixi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(xii) Liens consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Disposition would have been permitted on the date of the creation of such Lien; provided that such Liens encumber only the applicable assets pending consummation of the Disposition;
(xiii) (A) leases, licenses, subleases or sublicenses granted to other Persons in the ordinary course of business which do not (x) interfere in any material respect with the business of the Group Companies, taken as a whole, or (y) secure any Indebtedness, and (B) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Group Company;
(xiv) Permitted Encumbrances;
(xv) Liens on any assets or Equity Interests of a Foreign Subsidiary of the Borrower securing Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.02(ix);
(xvi) Liens securing obligations of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.under Sale/Leaseback Transactions permitted under Section 7.16;
(jxvii) (A) statutory and common law rights reserved of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or vested commodities intermediaries or brokerages and (B) Liens of a collecting bank arising in any municipality or public authority the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction and covering only the items being collected upon;
(xviii) (A) Liens that are contractual rights of setoff relating to control or regulate any asset purchase orders entered into with customers of such Person in the ordinary course of its business and (B) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Borrower or any of its Restricted Subsidiaries or to use Subsidiaries, provided that such asset in a manner which does not materially impair Lien secures only the use obligations of such asset for the purposes for which it is held by the Borrower or any such Subsidiaries in respect of its Restricted Subsidiariessuch letter of credit to the extent permitted under Section 7.02;
(kxix) irregularities Liens securing Indebtedness represented by financed insurance premiums in or deficiencies the ordinary course of title business consistent with past practice, provided that such Liens do not extend to any asset which do not materially adversely affect property or assets other than the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its businesscorresponding insurance policies being financed;
(lxx) any Lien on any property Liens arising from precautionary UCC financing statements or asset similar filings made in respect of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under operating leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uxxi) Liens in addition to those securing Indebtedness permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a securitySection 7.02(xii); provided, provided that the aggregate fair market value of the obligations subject to such Liens shall do not at any time exceed $500,000,000;encumber any property other than the Auction Rate Securities; and
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxxii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower securing Indebtedness outstanding in its Restricted Subsidiaries, so long as the an aggregate value of the obligations secured by such Liens does principal amount not to exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available35,000,000.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Holdings) now owned or personalhereafter acquired by it or on any income or rights in respect of any thereof, tangible or intangible) except Liens described in any of the Borrower or any such Restricted Subsidiary following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens created by the Collateral Documents;
(ii) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) for taxes (including outstanding Chapter 11 taxes), assessments or governmental charges or levies not yet due more than 30 days overdue or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksnot required to be paid pursuant to Section 6.05;
(biii) Liens imposed by lawsecuring the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , sellers of goods, carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which (A) secure payment of obligations charges, claims, demands, or levies which are not more than 45 30 days past due overdue or not required to be paid pursuant to Section 6.05 or (B) do not, individually or in the aggregate, materially detract from the value of the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Subsidiaries or (C) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(civ) Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; provided that no cash or deposits under worker’s compensation lawsother property (other than proceeds of insurance payable by reason of such judgments, unemployment insurancedecrees or attachments) the fair value of which exceeds $5,000,000 is deposited or delivered to secure any such judgment, old age pensionsdecree or award, or other social security or retirement benefits, or similar legislationany appeal bond in respect thereof;
(dv) easements Liens (includingother than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Debt or Derivatives Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances unemployment insurance and other restrictions, charges or encumbrances (whether or not recorded) affecting types of social security and other similar obligations incurred in the use ordinary course of real propertybusiness;
(evi) Liens existing on the Closing Date and described (including pledges or deposits) securing obligations in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment respect of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts surety bonds (other than contracts for borrowed moneyappeal bonds), bids, trade contracts, public or statutory obligations, surety and appeal bondsleases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)business;
(ivii) Liens pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions and similar obligations to providers of insurance on assets the ordinary cause of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.business;
(jviii) zoning restrictions, building codes, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Debt or Derivatives Obligations which do not, individually or in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not aggregate, materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Holdings or any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in the normal course of its such business;
(lix) Permitted Encumbrances;
(x) Liens securing Capital Lease Obligations and Purchase Money Debt permitted to be incurred under Section 7.01(iii) and Liens securing Debt of Foreign Subsidiaries permitted under Section 7.01 (xviii);
(xi) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxii) any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for consolidated with or into the purpose of financing all Borrower or any part a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxiii) rights of lessees arising under leases entered into any Lien existing on any asset prior to the acquisition thereof by the Borrower or any a Subsidiary of its Restricted Subsidiaries as lessor, the Borrower and not created in the ordinary course contemplation of businesssuch acquisition;
(pxiv) any Liens on or reservations with Lien securing Refinancing Debt in respect to governmental and other licenses, permits, franchises, consents and allowances; of any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary Debt of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (axi), (xii), (xiii) through or (xxxi) of this SectionSection 7.02; provided, provided that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxv) other Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights, in each case incurred in the ordinary course of business;
(xvi) licenses, sublicenses, leases or subleases granted by a Group Company as lessor to third Persons in the ordinary course of business not interfering in any material respect with the business of any Group Company;
(xvii) Liens on (A) incurred premiums, dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing Debt permitted to be incurred pursuant to Section 7.01(vii);
(xviii) any (A) Lien not securing any Debt, Derivatives Obligations or Synthetic Lease Obligations constituting an interest or title of a licensor, lessor or sublicensor or sublessor under any Operating Lease or license entered into by the Borrower or any of its Subsidiaries in compliance with this Agreement or (B) Lien resulting from the subordination by any such lessor or sublessor of its interest or title under such Operating Lease to any Lien described in subparagraph (viii) above; provided that the holder of such Lien or restriction agrees in writing to recognize the rights of such lessee or sublessee under such Operating Lease;
(xix) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods;
(xx) Liens securing obligations (other than Debt or Derivatives Obligations) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries;
(xxi) Liens existing on the Closing Date and listed on Schedule 7.02 hereto; provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Holdings and its Subsidiaries (other than accessions to and the proceeds of the property or property assets subject to such Liens to the extent provided by the terms thereof on the date hereof);
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Business Acquisition;
(xxiii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted Subsidiaries, Subsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other than goods; and
(xxiv) Liens on deemed to exist in the Voting Stock of ordinary course in connection with Cash Equivalents; and
(xxv) other Liens incurred by the Borrower in and its Restricted Subsidiaries, so long as Subsidiaries if the aggregate value amount of the obligations secured by such Liens does thereby do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect revenues, whether now owned or hereafter acquired, or sign or file or suffer to any property or assets exist under the Uniform Commercial Code of any kind (real or personal, tangible or intangible) of jurisdiction a financing statement that names the Borrower or any such Restricted Subsidiary (includingof its Subsidiaries as debtor, without limitationor assign any accounts or other right to receive income, their Voting Stock), exceptother than the following:
(ai) Liens pursuant to any Loan Document;
(ii) Liens existing on the Closing Date and listed on Schedule 7.01 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property, (B) the amount secured or benefited thereby is not increased, (C) the direct or any contingent obligor with respect thereto is not changed and (D) any renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.02(iii), provided, that any such replacement, extension or renewal of any Lien permitted by this clause (ii) above must be upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Indebtedness secured thereby.
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its booksGAAP;
(biv) Liens imposed by lawwarehousemen’s, such as carriersmechanics’, landlords’materialmen’s, warehousemenrepairmen’s and mechanics’ liens and or other similar liens like Liens arising by operation of law in the ordinary course of business which secure payment are not overdue for a period of obligations not more than 45 60 days past due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted, if adequate reserves in accordance with GAAP shall have been set aside respect thereto are maintained on its booksthe books of the applicable Person;
(cv) Liens arising out of pledges or deposits under worker’s compensation lawsin the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other social security or retirement benefitslegislation, or similar legislationother than any Lien imposed by ERISA;
(dvi) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or trade contracts and leases (other than contracts for borrowed moneyIndebtedness), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by business; provided that in the Borrower or any case of its Restricted SubsidiariesLiens on cash and Cash Equivalents, including the amount of all cash and Cash Equivalents subject to such Liens pursuant to secure obligations under agreements relating to this clause (vi) may at no time exceed $100,000 in the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)aggregate;
(ivii) deposits of cash and Cash Equivalents to secure reimbursement obligation in connection with letters of credit obtained in the ordinary course of business; provided that the amount of all cash and Cash Equivalents subject to such Liens pursuant to this clause (vii) may at no time exceed $2,000,000 in the aggregate;
(viii) 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 applicable Person;
(ix) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h); provided that no enforcement proceedings are commenced by any creditor upon such judgment or oder;
(x) Liens securing Indebtedness permitted under Section 7.02(v); provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(xi) Liens on assets property of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity Person existing at the time such corporation or entity Person is acquired, merged into or consolidated or amalgamated with or into the Borrower or any Subsidiary of its Restricted the Borrower or becomes a Subsidiary of the Borrower; provided that such Liens do not encumber equity Interests of any Subsidiaries of such Person and were not created in contemplation of such eventmerger, consolidation or Investment and do not extend to any assets other than those of the Person merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary, and the applicable Indebtedness secured by such Lien is permitted under Section 7.02(vi);
(mxii) Liens arising from precautionary Uniform Commercial Code financing statements regarding, and any Lien on any asset securing Debt incurred interest or assumed for the purpose title of financing all a licensor, lessor or any part of the cost of acquiringsublessor under, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:operating leases;
(nxiii) any Permitted Encumbrances;
(xiv) Liens to secure accounts payable obligations from carriers arising in connection with the issuance purchase of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising inventory under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental existing and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit future agreements entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of business between the Borrower or one of its Subsidiaries and any Restricted Subsidiary for the benefit supplier of inventory sold by the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is in the subject ordinary course of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a securitybusiness; provided, that the amount of such obligations may at no time exceed $10,000,000 in the aggregate; provided, further, that if the Lien in favor of these carriers is restricted to inventory purchased from such carrier and no UCC financing statements inconsistent with a Lien only on such inventory shall be filed or remain effective, then the aggregate amount shall not be limited by this clause (xiv); and
(xv) other Liens incurred by the Borrower and its Subsidiaries not securing Indebtedness, so long as the aggregate fair market value of the obligations property subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee Liens, and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations secured by such Liens does thereby, do not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available500,000.
Appears in 1 contract
Samples: Credit Agreement (Inphonic Inc)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic the Lower Mt. Bethel Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens Liens and other similar liens Liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Effective Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof Effective Date existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements for or relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)) provided, that, with respect to any Lien on electric generating plants of any Restricted Subsidiary to secure obligations under agreements for or relating to the purchase and sale of any commodity, the amount of the outstanding obligations secured by such Lien or Liens shall not, at any time, in the aggregate, exceed $1.5 billion;
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.;
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic the Lower Mt. Bethel Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
(aa) Liens granted to the Administrative Agent pursuant to Sections 2.09(a)(ii) and 2.20(a)(ii)(B) on cash collateral securing Letter of Credit Liabilities.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt;
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet payable, (b) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. (a) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, to at any time create, incur, assume or suffer to exist any Lien upon or with respect to on any property or assets of any kind (real asset now owned or personal, tangible or intangible) of hereafter acquired by the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), of its Subsidiaries or assign or subordinate any present or future right to receive assets except:
(ai) Liens for taxes, Taxes (including ad valorem and property Taxes) and assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being actively contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksproceedings;
(cii) other Liens arising out incidental to the conduct of the Borrower's business or the maintenance, operation, construction or ownership of its property and assets (including pledges or deposits under worker’s in connection with workers' compensation laws, unemployment insurance, old age pensions, or other and social security Taxes, assessments and charges, and landlords, mechanics and materialmen Liens and survey exceptions or retirement benefitsencumbrances, easements or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements)reservations, rights-of-way, covenantsor zoning restrictions) provided that (A) such Liens were not incurred in connection with the borrowing of money, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether the obtaining of advances or not recorded) affecting credit or the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would the deferred purchase price of property and (B) the existence of such Lien does not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any materially detract from the value of such property or asset acquired by assets to the Borrower or any Subsidiary or unreasonably interfere with the ordinary conduct of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may bebusiness;
(hiii) Liens, Liens (other than any Lien imposed by ERISA) incurred or deposits and/or similar arrangements made in the ordinary course of business to secure (or to obtain letters of credit that secure) the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, bids, leases, performance bonds bonds, purchase, construction or sales contracts and other obligations of a like nature similar obligations, in each case not incurred or made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”)connection with Debt;
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(liv) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing to secure all or any part of the cost of acquiring, constructing purchase price incurred or improving such asset; provided, that any such Lien attaches assumed to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance pay all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into property acquired by the Borrower or any of its Restricted Subsidiaries as lessora Subsidiary after the Effective Date, in the ordinary course of business;
provided that: (pA) any Liens on such Lien shall be confined solely to the item or reservations items of property so acquired and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to or for specific use with respect such acquired property; (B) the principal amount of the Debt secured by any such Lien shall at no time exceed 100% of the lesser of (1) the cost to governmental the Borrower or the Subsidiary of the property acquired and other licenses, permits, franchises, consents (2) the fair market value of such property (as determined in good faith by the Borrower's Board of Directors) at the time of such acquisition; and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qC) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any such Lien shall be created within three hundred sixty-five (365) days after the acquisition of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets completion of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financingsimprovements;
(v) Liens by securing Capitalized Lease Obligations provided such Liens are limited to the property subject to such leases;
(vi) other Liens securing Debt permitted under the Financial Covenants and which is (a) Debt of any Subsidiary to the Borrower or any Wholly-Owned Consolidated Subsidiary; (b) other Debt of Subsidiaries permitted under the Financial Covenants; or (c) other Debt of the Borrower (other than Debt owed to a Subsidiary) if after giving effect thereto, the Borrower is in compliance with the provisions of the Financial Covenants; and
(vii) any right of set off or banker's lien (whether by common law, statute, contract or otherwise) in favor of any Person to whom neither the Borrower nor Subsidiary owes any Debt.
(b) Except as otherwise specifically set forth herein, Borrower agrees that if it or any Subsidiary shall create or assume any Lien upon any of its property or assets, whether now owned or hereafter acquired, other than Permitted Liens, and unless prior written consent is obtained from the Bank, it will make or cause to be made effective provisions whereby the Loans shall be secured by such Lien equally and ratably with any and all other Debt thereby secured so long as any such other Debt shall be so secured. The Borrower further agrees that if any Person (other than the Borrower) Guarantees or provides collateral in any manner for any Debt of the Borrower or any Restricted Subsidiary Subsidiary, it will simultaneously cause such Person to Guarantee or provide collateral for the benefit of the Borrower Loans equally and ratably with all Debt Guaranteed or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed Person pursuant to documentation in form and substance reasonably satisfactory to the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower Bank and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablesuch Person.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including the Borrower, any Restricted Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof and (B) the renewal, extension or modification of the Indebtedness secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which that are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall have been set aside to the extent required (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its booksaccount thereof);
(biv) Liens imposed by lawLaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’suppliers, warehousemen’s and , materialmen, workmen, mechanics’ liens , carriers and other similar liens arising like Liens imposed by Law which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of the Borrower or any of its Restricted Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP shall GAAP, which proceedings have been set aside on its booksthe effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(cv) Liens arising out of pledges (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or and other similar legislationobligations incurred in the ordinary course of business;
(dvi) easements Liens securing obligations in respect of surety bonds (including, without limitation, reciprocal easement agreements and utility agreementsother than appeal bonds), rightsbids, trade contracts, leases, government contracts, performance and return-of-way, covenants, consents, reservations, encroachments, variances money bonds and other restrictions, charges or encumbrances (whether or not recorded) affecting similar obligations incurred in the use ordinary course of real propertybusiness;
(evii) Liens existing on the Closing Date upon specific items or inventory or other goods and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment proceeds of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the date hereof existing on any account of such property Person to facilitate the shipment or asset at the time storage of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to inventory or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may begoods;
(hviii) Lienspledges or deposits of cash and Cash Equivalents securing deductibles, deposits and/or self-insurance, co-payment, co-insurance, retentions and similar arrangements obligations to secure providers of insurance in the performance ordinary cause of bidsbusiness;
(ix) Liens on (A) incurred premiums, tenders dividends and rebates which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under state insurance guarantee funds relating to any such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(viii);
(x) Liens arising solely by virtue of any statutory or contracts (other than contracts for borrowed money)common Law provision relating to banker’s liens, public rights of set-off or statutory obligationssimilar rights, surety and appeal bonds, performance bonds and other obligations of a like nature in each case incurred in the ordinary course of business by business;
(xi) licenses, leases or subleases granted to third Persons or to the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of Subsidiaries by the Borrower and its Restricted Subsidiaries arising out in the ordinary course of obligations or duties to business not interfering in any municipality or public authority material respect with the business of any Group Company;
(xii) Liens with respect to any franchiseIntellectual Property that are licenses, grantsublicenses, license, permit covenants not to xxx or certificate.similar rights permitted pursuant to Section 7.05(xiv);
(jxiii) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights reserved to of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or vested other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any municipality property in the operation or public authority to control or regulate any asset business of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use value of such asset property for the purposes for which it is held by the Borrower or any purpose of its Restricted Subsidiariessuch business;
(kxiv) irregularities Liens arising from precautionary Uniform Commercial Code financing statements in any jurisdiction regarding, and any interest or deficiencies title of title a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xv) Liens in favor of lessor, sublessor, lessees or sublessees securing Operating Leases;
(xvi) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of custom duties in connection with the importation of goods in the ordinary course of business;
(xvii) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks and other financial institutions not given in connection with incurrence of Indebtedness, (ii) related to pool deposit of Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business; provided that Domestic Subsidiaries shall enter into such arrangements solely with Domestic Subsidiaries and Foreign Subsidiaries shall enter into such arrangements solely with Foreign Subsidiaries, or (iii) relating to purchase orders and other similar agreements entered in the ordinary course with customers;
(xviii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xix) Liens securing Indebtedness permitted to be incurred under Section 7.01(i), Section 7.01(iii) and Section 7.01(v);
(xx) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (other than by designation as a Restricted Subsidiary pursuant to Section 6.14), or existing on assets acquired, pursuant to a Permitted Business Acquisition to the extent the Liens on such assets secure Indebtedness permitted by Section 7.01(iv); provided that such Liens attach at all times only to the same assets that such Liens (other than after-acquired property that is (i) affixed or incorporated into the property covered by such Lien, (ii) after-acquired property subject to a Lien securing Indebtedness permitted under Section 7.01(iv), the terms of which Indebtedness require or include a pledge of after-acquired property (it being understood that such requirement shall not be permitted to apply to any asset property to which such requirement would not have applied but for such acquisition) and (iii) the proceeds and products thereof) attached to, and secure only, the same Indebtedness or obligations (or any Permitted Refinancing incurred to refinance such Indebtedness) that such Liens secured, immediately prior to such Permitted Business Acquisition;
(xxi) Liens securing Indebtedness permitted by Section 7.01(xiv) or (xv); provided that (w) the security agreements creating such Liens are substantially the same as the Collateral Documents, (x) such Liens do not materially adversely affect extend to any assets that are not Collateral, (y) the use holders of any such property Indebtedness (or an agent acting on their behalf) have entered into an intercreditor agreement reasonably satisfactory to the Administrative Agent and (z) in the case of Liens securing Permitted Refinancing incurred to refinance Indebtedness previously incurred pursuant to Section 7.01(xiv) or (xv), such Liens do not rank prior to the Liens securing the Indebtedness so refinanced;
(xxii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in the normal course connection with any letter of its businessintent or purchase agreement with respect to a Permitted Business Acquisition or a Permitted Joint Venture;
(lxxiii) any Lien Liens on cash and Cash Equivalents securing Swap Obligations owing to one or more Persons who are not Swap Creditors;
(xxiv) Liens on any property assets or asset Equity Interests of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into a Foreign Subsidiary of the Borrower or any securing Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.01(xi);
(xxv) other Liens incurred by the Borrower and its Restricted Subsidiaries the aggregate fair market value of the property subject to such Liens, and the aggregate amount of the obligations secured thereby, do not created exceed the greater of (x) $75,000,000 and (y) 3% of Consolidated Total Assets as of the last day of the most recent period of four consecutive fiscal quarters in contemplation respect of such eventwhich financial statements have been delivered pursuant to Section 6.01, in each case at any time outstanding;
(mxxvi) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches Liens deemed to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens exist in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Investments in repurchase agreements permitted under Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property7.06;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uxxvii) Liens in addition to those permitted by clauses (a) through (t) on the property or assets favor of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary financial institutions pursuant to sponsorship, clearinghouse and/or settlement arrangements, provided that no Lien permitted will extend to cover property of the Borrower or any Restricted Subsidiary for thereof other than that held by the benefit other party to such arrangement and the amount of such Lien shall not exceed the amount owed by the Borrower or the Restricted Subsidiary under such arrangement;
(xxviii) Liens in favor of customers of the Borrower or any such Restricted Subsidiary;Subsidiary over settlement, reserve or similar accounts granted in the ordinary course of business; and
(wxxix) Liens on property which is the subject of accounts receivable, Securitization Assets and related assets incurred in connection with a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableQualified Securitization Facility.
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, Company shall not hereafter create, incurassume, assume incur or suffer to exist any Lien mortgage, lien, pledge, charge or encumbrance of any kind, other than "Excepted Encumbrances," upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower Company, other than "Excepted Property," whether owned as of the date hereof or any hereafter acquired, to secure indebtedness without effectively providing that the Securities shall be secured equally and ratably with the indebtedness secured by such Restricted Subsidiary (includingmortgage, without limitationlien, their Voting Stock)pledge, exceptcharge or encumbrance. Subject to the next succeeding sentence, the restriction contained in this section shall not be applicable to nor prevent the following:
(a) Liens the pledging by the Company of any assets as security for taxesthe payment of any tax, assessments assessment or other similar charge demanded of the Company by any governmental charges authority or levies not yet due or which are being contested public body so long as the Company in good faith and contests its liability to pay the same, or as security to be deposited with any governmental authority or public body for any person at any time required by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its bookslaw or governmental regulation as a condition to the transaction of any business or the exercise of any privilege, license or right;
(b) Liens imposed the pledging by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and the Company of any assets for the purposes of securing a stay or discharge or for any other similar liens arising purpose in the ordinary course of business any legal proceeding in which secure payment the Company or a subsidiary is a party or for the purpose of obtaining insurance coverage or other surety obligations not more than 45 days past due providing for securing such stay or which are being contested discharge in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksthe event such stay or discharge should be required;
(c) Liens arising out of pledges making good faith deposits or providing security in connection with tenders, redemptions, contracts or leases to which the Company is a party or deposits for the purpose of terminating obligations under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationan indenture;
(d) easements the pledging by the Company of any assets in connection with the incurrence of indebtedness (including, without limitation, reciprocal easement agreements and utility agreements), rightsunder circumstances not otherwise excepted from the operation of this Section) in aggregate principal amount not exceeding five percent (5%) of the assets of the Company as presented in the financial statements of the Company contained in the most recently filed report on Form 10-ofK or 10-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges Q (or encumbrances (whether or not recordedsuccessor forms thereto) affecting filed with the use Commission at the time of real propertysuch pledge;
(e) Liens existing liens, pledges, security interests or other encumbrances on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment property, shares of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens stock or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset indebtedness of any corporation or other entity existing at the time such corporation becomes a subsidiary of or entity is acquired, merged or consolidated or amalgamated with or into the Borrower Company, or any existing at the time of its Restricted Subsidiaries and not created in contemplation acquisition of such eventproperty or stock by the Company;
(mf) incurring liens, licenses, pledges, security interests or other encumbrances (which shall include, without limitation, purchase money mortgages, conditional sale agreements and other title retention agreements and leases in the nature of title retention agreements) to secure the payment of all or any Lien part of the price of acquisition, construction or improvement of any property or stock acquired by the Company, or to secure any indebtedness incurred by the Company prior to, at the time of, or within 180 days after the later of the acquisition or completion of construction (including any improvements on any asset securing Debt an existing property) which secured debt is incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing purchase price thereof or improving such assetconstruction or improvements thereon; provided, however, that in the case of any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement, the lien, pledge, security interest or other encumbrance shall not apply to any property theretofore owned by the Company, other than, in the case of any such construction or improvement, any theretofore substantially unimproved real property on which the property or improvement thereof:so constructed is located;
(ng) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds liens, pledges, security interests or other similar bonds issued encumbrances (which shall include, without limitation, purchase money mortgages, conditional sale agreements and other title retention agreements and leases in the nature of title retention agreements) on property of the Company in favor of the United States of America or any state thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any state thereof, or in favor of any other county or political subdivision thereof, or any department, agency or instrumentality of such county or political subdivision, to secure partial progress, installment, advance or other payments pursuant to Section 103(bany contract or statute or to secure any indebtedness or other obligation (or related instrument) incurred for the purpose of the Internal Revenue Code of 1986, as amended, to finance financing all or any part of the purchase price of or the cost of constructingconstruction of the property subject to such liens, equipping pledges, security interest or improving propertyother encumbrances;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(ph) any Liens on extension, renewal or reservations with respect replacement (or successive extension, renewal or replacement) in whole or in part of any lien or encumbrance referred to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (tg) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all rightabove, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and inprovided, to and under such lease agreement, whether or not such lease agreement is intended as a security; providedhowever, that the aggregate fair market value principal amount of indebtedness secured thereby is not increased and the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding replacement shall be limited to all or part of the property which secured the indebtedness so extended, renewed or replaced (plus improvements and construction on such property); or
(i) the lien granted to the Trustee pursuant to Section 907 hereof and any Debt substantially equivalent lien granted to the respective trustees under the indentures for any other debt securities of the Company. Notwithstanding the foregoing, in no event shall the Company create, assume, incur or other obligation secured by any Lien permitted by suffer to exist pursuant to the foregoing clauses (a) through and (xc)-(i) and any mortgage, lien, pledge, charge or encumbrance on the Capital Stock of either of the Significant Subsidiaries directly or indirectly owned by the Company. Any instrument creating a lien pursuant to the requirements of this Section; providedSection shall contain reasonable and customary provisions for the enforcement of such lien and for the release of, that or substitution for, the property subjected to such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablelien.
Appears in 1 contract
Samples: Indenture (Energen Corp)
Restriction on Liens. The Borrower Guarantor and the Borrowers will not, nor will it they permit any of its Restricted their Subsidiaries (other than the Excluded Subsidiaries) to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Guarantor, any Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 forty-five (45) days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s workers’ compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Effective Date and described in Schedule 6.07 5.09 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.016.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Guarantor, any Borrower or any of its Restricted their Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Guarantor, any Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Guarantor, any Borrower or any of its Restricted their Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Guarantor, any Borrower and its Restricted their Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.;
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Guarantor, any Borrower or any of its Restricted their Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Guarantor, any Borrower or any of its Restricted their Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Guarantor, any Borrower or any of its Restricted their Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Guarantor, any Borrower or any of its Restricted their Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Guarantor, any Borrower or any of its Restricted their Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; ;
(q) any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(qr) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(rs) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(st) Liens securing letters of credit entered into in the ordinary course of business;
(tu) Liens granted on the capital stock of Subsidiaries that are not Restricted Excluded Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(uv) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(vw) Liens by any Wholly-Wholly Owned Subsidiary of the Guarantor, any Borrower or any Restricted Subsidiary (excluding, for the avoidance of doubt, any Wholly Owned Subsidiary that is a Borrower) for the benefit of the Guarantor, any Borrower or any such Restricted Subsidiary;
(wx) Liens on property which is the subject of a Capital Lease Obligation designating the Guarantor, any Borrower or any of its Restricted their Subsidiaries as lessee and all right, title and interest of the Guarantor, any Borrower or any of its Restricted their Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(xy) Liens on property which is the subject of one or more leases designating the Guarantor, any Borrower or any of its Restricted their Subsidiaries as lessee and all right, title and interest of the Guarantor, any Borrower or any of its Restricted their Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(yz) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;; and
(zaa) other Liens on assets or property of the Guarantor, any Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted their Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower Guarantor, the Borrowers and its their Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower Guarantor for which financial statements are available.
Appears in 1 contract
Samples: Senior Bridge Term Loan Credit Agreement (PPL Corp)
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) including any Subsidiary of the Borrower Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, except Liens described in any of the following clauses (collectively, “Permitted Liens”):
(i) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, refinancings, replacements, substitutions renewals or extensions thereof; provided that (A) any such Restricted Subsidiary modification, refinancing, replacement, substitution, renewal or extension of any such Lien does not extend to any additional property other than (includingx) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, without limitationand (B) the refinancing, their Voting Stock)replacement, except:substitution, modification, renewal or extension of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(aii) Liens created by the Collateral Documents;
(iii) Liens for taxesTaxes, assessments or and other governmental charges or levies not yet due or (A) which are being contested in good faith and by appropriate proceedings and not overdue for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course a period of business which secure payment of obligations not more than 45 30 days past due or (B) which are being contested in good faith by appropriate proceedings and for as to which adequate reserves have been established in accordance with GAAP shall have been set aside on its booksGAAP;
(civ) Liens arising out imposed by Law securing the charges, claims, demands or levies of pledges or deposits under worker’s compensation lawslandlords, unemployment insurancecarriers, old age pensionssuppliers, or other social security or retirement benefitswarehousemen, or similar legislation;
(d) easements (includingmaterialmen, without limitationworkmen, reciprocal easement agreements and utility agreements)mechanics, rights-of-way, covenants, consents, reservations, encroachments, variances carriers and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) like Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments imposed by Law which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature were incurred in the ordinary course of business by and which (A) do not, individually or in the Borrower or any of its Restricted Subsidiariesaggregate, including Liens to secure obligations under agreements relating to materially detract from the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets value of the Borrower and its Restricted Subsidiaries arising out property or assets which are the subject of obligations such Lien or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested materially impair the use thereof in any municipality or public authority to control or regulate any asset the operation of the business of the Borrower or any of its Restricted Subsidiaries or to use such asset Subsidiaries, (B) are otherwise being contested in a manner which does not materially impair the use of such asset for the purposes good faith by appropriate proceedings diligently pursued for which it is held by adequate reserves (in the Borrower good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or any sale of its Restricted Subsidiariesthe property or assets subject to such Lien or (C) secure amounts not overdue for a period of more than 30 days;
(kv) irregularities in Liens (other than any Liens imposed by ERISA or deficiencies of title pursuant to any asset which do Environmental Law) not materially adversely affect the use of such property by the Borrower securing Indebtedness or any of its Restricted Subsidiaries Swap Obligations incurred or deposits made in the normal ordinary course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens business in connection with the issuance workers’ compensation, unemployment insurance and other types of tax-exempt industrial development or pollution control bonds or social security and other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, obligations incurred in the ordinary course of business;
(pvi) any Liens on securing obligations in respect of surety bonds (other than appeal bonds and bonds posted in connection with court proceedings or reservations with respect judgments), customs bonds, statutory obligations to governmental Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other licensessimilar obligations incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP, permits, franchises, consents and allowances; which proceedings for orders entered in connection with such proceedings have the effect of preventing the forfeiture or sale of the property subject to any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwaresuch Lien;
(qvii) any Liens on automobilespledges or deposits of cash and Cash Equivalents securing deductibles, busesself-insurance, trucks and other co-payment, co-insurance, retentions or similar vehicles and movable equipment; marine equipment; airplanesobligations to providers of property, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative casualty or clerical purposes;
(s) Liens securing letters of credit entered into liability insurance in the ordinary course of business;
(tviii) Liens granted on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any such insurance policy, in each case securing the obligations of such SubsidiariesIndebtedness permitted to be incurred pursuant to Section 7.01(ix);
(uix) Liens arising solely by virtue of any contract, statutory or common Law provision, in addition each case relating to those permitted by clauses (a) through (t) on banker’s liens, rights of setoff or similar rights, in each case incurred in the property or assets ordinary course of business, including Liens of a Special Purpose Subsidiary collection bank arising under Section 4-210 of the UCC on items in connection with any Existing Synthetic Lease Financing or the lease course of such property or assets through one or more other Synthetic Lease financingscollection;
(vx) Liens non-exclusive licenses or sublicenses of Intellectual Property, or leases or subleases, granted to third Persons by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of its Subsidiaries or to the Borrower or its Subsidiaries by a third Person in the ordinary course of business not interfering in any such Restricted Subsidiarymaterial respect with the business of any Group Company;
(wxi) Liens zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which is do not, individually or in the subject aggregate, materially impair the use of a Capital Lease Obligation designating any property in the Borrower operation or any of its Restricted Subsidiaries as lessee and all right, title and interest business of the Borrower or any of its Restricted Subsidiaries in and to or the value of such property and in, to and under for the purpose of such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000business;
(xxii) Liens on arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiii) Liens arising from judgments, decrees or attachments (or securing of appeal bonds and bonds posted in connection with court proceedings or judgments with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xiv) Liens securing Indebtedness permitted to be incurred under Section 7.01(i) (so long as such Liens do not extend beyond the property which secured such Indebtedness as of the Closing Date, provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender), Section 7.01(iii) (so long as such Liens attach to the property or asset so financed within 180 days of the related incurrence of Indebtedness) and Section 7.01(vi) (so long as the Lien securing such Permitted Refinancing does not extend beyond the property which secured the Indebtedness which is being refinanced, provided that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender) and which does not extend to any assets other than those of such Person;
(xv) any Lien existing on any asset of any Person at the subject time such Person becomes a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvi) any Lien on any asset (other than on the Equity Interests of one or more leases designating Subsidiaries) of any Person existing at the time such Person is merged or consolidated with or into the Borrower or a Subsidiary of the Borrower and not created in contemplation of such event and which does not extend to any assets other than those of such Person and other than proceeds thereof or improvements thereof;
(xvii) any Lien existing on any asset (other than on the Equity Interests of one or more Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xviii) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries as lessee in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, a Permitted Intellectual Property Asset Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture and all rightexclusive licenses and sublicenses permitted under Section 7.05(xvi)(A) or Section 7.06(a)(xvi) or (xxiv), title to the extent such licenses and interest sublicenses constitute a Lien;
(xix) (a) Liens on cash and Cash Equivalents securing Swap Obligations and (b) Liens securing Swap Obligations of the Borrower or any of its Restricted Subsidiaries Subsidiary under Swap Agreements to the extent entered into with a financial institution that is not a Swap Creditor in order to manage interest rate, foreign currency exchange rate and commodity pricing risks and not for speculative purposes in an aggregate amount not to such property and in, to and under exceed $5,000,000 at any such lease agreement, whether or not any such lease agreement is intended as a securitytime outstanding;
(yxx) Liens in favor of customs and revenue authorities arising as a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(xxi) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the refinancing, extension, renewal or refunding sale of any Debt or other obligation secured goods entered into by any Lien permitted by clauses (a) through (x) Group Company in the ordinary course of this Section; provided, that business in accordance with past practices of such Debt or other obligation is not increased and is not secured by any additional assetsGroup Company;
(zxxii) licenses or leases of the properties of any Group Company, and the rights of ordinary-course lessees described in Section 9-321 of the UCC, in each case entered into in the ordinary course of such Group Company’s business so long as such licenses or Leases and rights do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Group Company or (ii) materially impair the use (for its intended purposes) or the value of the property subject thereto;
(xxiii) Liens which may arise as a result of municipal and zoning codes and ordinances, building and other land use laws imposed by any Governmental Authority which are not violated in any material respect by existing improvements or the present use or occupancy of any Real Property, or in the case of any Real Property subject to a mortgage, encumbrances disclosed in the title insurance policy issued to, and reasonably approved by, the Collateral Agent;
(xxiv) Liens in respect of the licensing of patents, copyrights, trademarks, trade names, other indications of origin, domain names and other forms of intellectual property in the ordinary course of business; and
(xxv) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value amount of the obligations or liabilities secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available10,000,000 at any time outstanding.
Appears in 1 contract
Restriction on Liens. The Guarantor and the Borrower will not, nor will it they permit any of its Restricted their Subsidiaries (other than the Excluded Subsidiaries) to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Guarantor, the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Effective Date and described in Schedule 6.07 5.09 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.016.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Guarantor, the Borrower or any of its Restricted their Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Guarantor, the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Guarantor, the Borrower or any of its Restricted their Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Guarantor, the Borrower and its Restricted their Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Guarantor, the Borrower or any of its Restricted their Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Guarantor, the Borrower or any of its Restricted their Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Guarantor, the Borrower or any of its Restricted their Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Guarantor, the Borrower or any of its Restricted their Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Guarantor, the Borrower or any of its Restricted their Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Excluded Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease lease financings;
(v) Liens by any Wholly-Wholly Owned Subsidiary of the Guarantor, the Borrower or any Restricted Subsidiary for the benefit of the Guarantor, the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Guarantor, the Borrower or any of its Restricted their Subsidiaries as lessee and all right, title and interest of the Guarantor, the Borrower or any of its Restricted their Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Guarantor, the Borrower or any of its Restricted their Subsidiaries as lessee and all right, title and interest of the Guarantor, the Borrower or any of its Restricted their Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;; and
(z) other Liens on assets or property of the Guarantor, the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted their Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Guarantor, the Borrower and its their Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower Guarantor for which financial statements are available.
Appears in 1 contract
Samples: Senior Bridge Term Loan Credit Agreement (PPL Corp)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect to any property revenues, whether now owned or assets of any kind (real or personal, tangible or intangible) of hereafter acquired other than the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(ai) Liens pursuant to any Loan Document;
(ii) Liens existing on the Closing Date, and if the Indebtedness secured by such Lien is modified, replaced, renewed or extended with any Permitted Refinancing Indebtedness, any Lien on the same collateral securing such Permitted Refinancing Indebtedness;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due delinquent or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its books(or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time to time in their respective jurisdictions of organization);
(biv) Liens imposed by lawlandlords’, such as carriers’, landlordswarehousemen’s, mechanics’, warehousemen’s and mechanics’ liens and materialmen’s, repairmen’s, workmen’s, suppliers’, processors’, storage or other similar liens like Liens arising in the ordinary course of business which secure payment are securing amounts not overdue for a period of obligations not more than 45 60 days past due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted, if adequate reserves in accordance with GAAP shall have been set aside respect thereto are maintained on its booksthe books of the applicable Person;
(cv) Liens arising out of pledges or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers’ compensation, unemployment insurance, old age pensions, or insurance and other social security or retirement benefitssimilar laws or regulations, or similar other than any Lien imposed by ERISA and other social security legislation;
(dvi) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges pledges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of tenders, bids, tenders or trade contracts and leases (other than contracts for borrowed moneyIndebtedness), public or statutory obligationsobligations and surety, surety and appeal bondsappeal, bid, performance or payment bonds and other obligations of a like nature incurred in the ordinary course of business;
(vii) easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or 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 by of the Borrower or any Group Companies, taken as a whole;
(viii) Liens securing judgments not constituting an Event of its Restricted Subsidiaries, including Liens to secure obligations Default under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”Section 8.01(h);
(iix) Liens securing Indebtedness permitted under Section 7.02(vii); provided that (A) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, except that individual financings of equipment provided by one lender of the type permitted under Section 7.02(vii) may be cross collateralized to other financings of equipment provided by such lender of the type permitted under Section 7.02(vii) and (B) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;
(x) Liens on assets property of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity Person existing at the time such corporation or entity Person is acquired, merged into or consolidated or amalgamated with or into the U.S. Borrower or any of its Restricted Subsidiaries and other Group Company or becomes a Group Company; provided that such Liens were not created in contemplation of such eventmerger, consolidation or Investment and do not extend to any assets other than those of the Person merged into or consolidated with the U.S. Borrower or any other Group Company or acquired by the U.S. Borrower or any other Group Company, and the applicable Indebtedness secured by such Lien is permitted under Section 7.02(viii);
(mxi) any Lien on any asset securing Debt incurred or assumed for the purpose Liens in favor of financing all or any part customs and revenue authorities arising as a matter of the cost law to secure payment of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens customs duties in connection with the issuance importation of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, goods in the ordinary course of business;
(pxii) Liens consisting of an agreement to Dispose of any property in a Disposition permitted under Section 7.05, in each case, solely to the extent such Disposition would have been permitted on the date of the creation of such Lien; provided that such Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareencumber only the applicable assets pending consummation of the Disposition;
(qxiii) any Liens on automobiles(A) leases, buseslicenses, trucks and subleases or sublicenses granted to other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into Persons in the ordinary course of businessbusiness which do not (x) interfere in any material respect with the business of the Group Companies, taken as a whole, or (y) secure any Indebtedness, and (B) the rights reserved or vested in any Person by the terms of any lease, license, franchise, grant or permit held by any Group Company;
(txiv) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such SubsidiariesPermitted Encumbrances;
(uxv) Liens in addition to those permitted by clauses (a) through (t) on the property any assets or assets Equity Interests of a Special Purpose Foreign Subsidiary arising in connection with any Existing Synthetic Lease Financing or of the lease U.S. Borrower securing Indebtedness of such property or assets through one or more other Synthetic Lease financingsForeign Subsidiary incurred pursuant to Section 7.02(ix);
(vxvi) Liens by any Wholly-Owned Subsidiary securing obligations of the U.S. Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiaryand its Subsidiaries under Sale/Leaseback Transactions permitted under Section 7.16;
(wxvii) (A) statutory and common law rights of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerages and (B) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction and covering only the items being collected upon;
(xviii) (A) Liens that are contractual rights of setoff relating to purchase orders entered into with customers of such Person in the ordinary course of its business and (B) Liens on property goods the purchase price of which is financed by a documentary letter of credit issued for the subject account of a Capital Lease Obligation designating the U.S. Borrower or any of its Restricted Subsidiaries as lessee and all rightSubsidiaries, title and interest provided that such Lien secures only the obligations of the U.S. Borrower or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 7.02;
(xix) Liens securing Indebtedness represented by financed insurance premiums in the ordinary course of business consistent with past practice, provided that such Liens do not extend to any property or assets other than the corresponding insurance policies being financed;
(xx) Liens arising from precautionary UCC financing statements or similar filings made in respect of operating leases entered into by the U.S. Borrower or any of its Restricted Subsidiaries in and to such property and in, to and Subsidiaries;
(xxi) Liens securing Indebtedness permitted under such lease agreement, whether or not such lease agreement is intended as a securitySection 7.02(xii); provided, provided that the aggregate fair market value of the obligations subject to such Liens shall do not at any time exceed $500,000,000encumber any property;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(zxxii) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower securing Indebtedness outstanding in its Restricted Subsidiaries, so long as the an aggregate value of the obligations secured by such Liens does principal amount not to exceed the greater of (A) $250,000,000 or 350,000,000 and (B) an amount equal to 15% of the total consolidated assets Consolidated Net Tangible Assets as of the Borrower and its Consolidated Subsidiaries as end of the most recent fiscal quarter of the Borrower or fiscal year for which financial statements are availablehave been delivered pursuant to Section 6.01(a) or (b);
(xxiii) Liens existing or deemed to exist in connection with Permitted Securitizations; and
(xxiv) any security interest or set-off arrangements entered into by any Foreign Borrower or its Subsidiaries in the ordinary course of its banking arrangements which arise from the general banking conditions (algemene bankvoorwaarden) (including, for the avoidance of doubt, in relation to a Foreign Borrower which is incorporated under the laws of the Netherlands, any security created pursuant to the general conditions of a bank operating in the Netherlands based on the general conditions drawn up by the Netherlands Bankers’ Association (Nederlandse Vereniging xxx Xxxxxx) and the Consumers Union (Consumentenbond)).
Appears in 1 contract
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Consolidated Subsidiaries to, create, incur, assume or suffer to exist be created, assumed or incurred or to exist, any Lien upon or with respect to any of their property or assets, whether now owned or hereafter acquired other than:
(a) Liens against assets of any kind (real or personal, tangible or intangible) of the Borrower or any a Consolidated Subsidiary securing Debt of such Restricted Subsidiary Person, so long as (includingi) the aggregate amount of all such secured Debt does not exceed $5,000,000, without limitation, their Voting Stockand (ii) such secured Debt is otherwise permitted by Section 6.02(a)(v), except:in the case of the Borrower, or Section 6.02(a)(iv), in the case of a Consolidated Subsidiary;
(ab) Liens imputed to Capital Leases under which a Consolidated Subsidiary is the lessee, so long as the Debt of such Consolidated Subsidiary in respect of such Capital Lease is permitted by Section 6.02(a)(iv);
(c) Liens on property of any Consolidated Subsidiary that attach concurrently with such Consolidated Subsidiary’s purchase thereof, and securing only Debt of such Consolidated Subsidiary permitted by Section 6.02(a)(iv) and incurred to finance all or part of the purchase price of such property, and any extensions and renewals of such Liens so long as the Debt secured thereby is not greater than the Debt secured immediately prior to such extension and renewal and such Debt is permitted by Section 6.02(a)(iv) at the time of such extension and renewal;
(d) Liens for taxes, assessments or governmental charges or levies if the same shall at the time not yet due be delinquent or thereafter may be paid without penalty, or the validity of which are being contested in good faith and by appropriate proceedings promptly initiated and for diligently conducted and as to which adequate reserves in accordance with GAAP shall have been set aside on its booksthe books of the Borrower in accordance with generally accepted accounting principles;
(be) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising Liens which arise in the ordinary course of business which business, do not materially impair the use or value of its properties or assets or the conduct of its business, and secure payment of obligations that are not more than 45 days past yet due and payable or which are being contested in good faith by appropriate proceedings promptly initiated and for diligently conducted and as to which adequate reserves in accordance with GAAP shall have been set aside on its booksthe books of the Borrower in accordance with generally accepted accounting principles or as to which adequate bonds shall have been obtained;
(cf) Liens arising out of pledges or deposits to secure obligations under workerworkmen’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, laws or similar legislationlegislation or to secure public or statutory obligations of the Borrower;
(dg) easements Liens created in favor of a Governmental Authority to secure partial, progress, advance or other contractual payments pursuant to any agreement or statute;
(includingh) attachment, without limitationjudgment and other similar Liens arising in connection with court proceedings, reciprocal easement agreements provided the execution or other enforcement of such Liens is effectively stayed and utility agreements)the claims secured thereby are being actively contested in good faith and by appropriate proceedings in such manner as not to have the property subject to such Liens forfeitable; and
(i) easements, rights-of-way, covenants, consents, reservations, exceptions, minor encroachments, variances restrictions and other restrictions, similar charges created or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by which in the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to aggregate do not materially interfere with the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets business operations of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchisetaken as a whole, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner and which does were not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance borrowing of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablemoney.
Appears in 1 contract
Samples: Credit Agreement (Kirby Corp)
Restriction on Liens. The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume or suffer guarantee any Secured Debt without making effective provision (and the Borrower covenants that in such case it will make or cause to exist be made effective provision) whereby the Loans (and any other Debt of the Borrower or such Subsidiary then entitled thereto) shall be secured by the same Lien equally and ratably with (or prior to) any and all other obligations and Debt thereby secured for so long as any such other obligations and Debt shall be so secured; provided that the foregoing covenant shall not apply to the following:
(i) Any Lien on any property acquired or constructed by the Borrower or a Subsidiary and created contemporaneously with, or within 24 months after, such acquisition or the completion of such construction and commencement of full operation of such property, whichever is later, to secure or provide for the payment of any part of the purchase or construction price of such property, or (ii) the acquisition by the Borrower or a Subsidiary of property subject to any Lien upon such property existing at the time of acquisition thereof, whether or not assumed by the Borrower or such Subsidiary, or (iii) any conditional sales agreement or other title retention agreement with respect to any property hereafter acquired; provided that the Lien does not spread to other property except unimproved real property previously owned upon which any new construction has taken place and subsequent additions to such acquired or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksconstructed property;
(b) Liens imposed Any Lien created for the sole purpose of extending, renewing or refunding, in whole or part, any Lien permitted by lawthis Section 5.09 or any Lien securing the Debt of the Borrower or of any Subsidiary on the date of this Agreement or of a corporation at the time such corporation becomes a Subsidiary, or any extensions, renewals or refundings of any such as carriers’Lien; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, landlords’renewal or refunding and that such extension, warehousemen’s and mechanics’ liens and other similar liens arising in renewal or refunding Lien shall be limited to all or that part of the ordinary course of business same property which secure payment of obligations not more than 45 days past due secured the Debt so extended, renewed or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its booksrefunded;
(c) Liens arising out Any Secured Debt of pledges a Subsidiary owing to the Borrower or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislationa Wholly-Owned Consolidated Subsidiary;
(d) easements Secured Debt of the Borrower and its Subsidiaries which would otherwise be prohibited by the foregoing restrictions (including, without limitation, reciprocal easement agreements not including Secured Debt permitted to be secured under subsections (a) through (c) above) so long as the sum of any such Secured Debt hereafter incurred and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances outstanding at the time plus Attributable Debt of the Borrower and other restrictions, charges or encumbrances any Subsidiaries in respect of Sale and Leaseback Transactions hereafter entered into and outstanding at the time (whether or not recordedexcluding Attributable Debt incurred in respect of any Sale and Leaseback Transaction (i) affecting the use entered into in respect of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after a Subsidiary not more than 24 months prior to the date hereof existing on any such property Sale and Leaseback Transaction is entered into or asset at (ii) if the time Borrower, within 120 days before or after such Sale and Leaseback Transaction is entered into applies an amount equal to the greater of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset A) the net proceeds of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property so sold and leased back or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or (B) the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of such property at the obligations subject date such arrangement is entered into to such Liens shall not the retirement of Secured Debt (other than at maturity or pursuant to any time exceed $500,000,000;
(xmandatory payment provision) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest to reduction of the Borrower or Commitments) plus unsecured Debt of any of its Restricted Subsidiaries in Subsidiary hereafter incurred and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
outstanding at the time (y) Liens arising out of excluding unsecured Debt incurred through the refinancing, extension, renewal or refunding of Debt of such Subsidiary where Consolidated Debt was not thereby increased and excluding any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of owed to the Borrower or a Wholly-Owned Consolidated Subsidiary) does not at the time exceed 5% of Consolidated Net Tangible Assets; and
(e) any of its Restricted SubsidiariesLien on any Margin Stock, other than Liens on if and to the Voting Stock of extent the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets all Margin Stock of the Borrower and its Consolidated Subsidiaries as exceeds 25% of the most recent fiscal quarter value of the Borrower for which financial statements are availabletotal assets subject to this Section.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries subsidiaries to, create, incurassume, assume incur or suffer to exist any Lien upon or with respect to any property or assets of any kind (real or personal, tangible or intangible) of the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(a) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation kind, real or personal, tangible or intangible, now owned or hereafter acquired by it or assign or subordinate any present or future right to receive assets except:
(a) Liens securing capital lease obligations and other entity existing purchase money Funded Debt permitted under Section 6.6(a);
(b) Liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; provided that (A) with respect to Liens securing state and local taxes, such taxes are not yet payable, (B) with respect to Liens securing claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and the like, such liens are unfiled and no other action has been taken to enforce the same, or (C) with respect to taxes, assessments or governmental charges or levies or claims or demand secured by such Liens, payment is not at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such eventrequired;
(mc) any Lien on any asset Liens not securing Debt indebtedness which are incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of businessbusiness in connection with workmen's compensation, unemployment insurance, unemployment insurance, social security and other like laws;
(pd) any Liens on Lien arising pursuant to any order of attachment, distraint or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used legal process arising in connection with court proceedings so long as the execution or other enforcement thereof is effectively stayed and the claims secured thereto are being contested in good faith by appropriate proceedings; and
(e) zoning restrictions, easements, licenses, reservations, covenants, conditions, waivers, restrictions on the use of property or other minor encumbrances or irregularities of title which do not materially impair the use of any property in the operation or business of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative Borrower or clerical purposes;
(s) Liens securing letters such subsidiary or the value of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries such property for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availablebusiness.
Appears in 1 contract
Samples: Loan Agreement (Pharmaceutical Product Development Inc)
Restriction on Liens. The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Lien upon any of its property, assets or with respect revenues which is of a type constituting or intended to any property constitute Collateral, whether now owned or assets of any kind (real or personalhereafter acquired, tangible or intangible) of other than the Borrower or any such Restricted Subsidiary (including, without limitation, their Voting Stock), exceptfollowing:
(ai) (A) Liens pursuant to any Loan Document and (B) Liens securing the Term Credit Facilities, provided that, in the case of the foregoing clause (B), (x) such Liens on 3616092.7 133 any Collateral are subordinated to the Liens of the Collateral Agent for the benefit of the Secured Parties pursuant to a customary intercreditor agreement in form and substance reasonably satisfactory to the Collateral Agent and the Parent Borrower and (y) if the Term Credit Facilities are secured by a Lien on any Collateral and on any assets other than Collateral, the Collateral Agent is granted a second priority Lien in such assets not constituting Collateral pursuant to customary security and intercreditor agreements in form and substance reasonably satisfactory to the Collateral Agent and the Parent Borrower;
(ii) Liens existing on the Restatement Effective Date and listed on Schedule 5.08(b) securing Existing Indebtedness permitted under Section 7.02(iv) and any other liabilities not prohibited under this Agreement and any Permitted Refinancing of the Indebtedness or such other liabilities secured thereby; provided that, unless otherwise consented to by the Administrative Agent, (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.02 and (y) proceeds and products thereof, (B) the amount secured or benefited thereby is not increased above its original principal amount and (C) the direct or any contingent obligor with respect thereto is not changed;
(iii) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which diligently conducted if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP shall have been set aside on its booksGAAP;
(b) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 days past due or which are being contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(c) Liens arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries, including Liens to secure obligations under agreements relating to the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for the purposes for which it is held by the Borrower or any of its Restricted Subsidiaries;
(k) irregularities in or deficiencies of title to any asset which do not materially adversely affect the use of such property by the Borrower or any of its Restricted Subsidiaries in the normal course of its business;
(l) any Lien on any property or asset of any corporation or other entity existing at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(m) any Lien on any asset securing Debt incurred or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower or any of its Restricted Subsidiaries as lessor, in the ordinary course of business;
(p) any Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising in connection with any Existing Synthetic Lease Financing or the lease of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available.
Appears in 1 contract
Restriction on Liens. The Borrower None of the Group Companies will not, nor will it permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real or personalPerson, tangible or intangible) of including the Borrower or any Subsidiary of the Borrower) now owned or hereafter acquired by it or on any income or rights in respect of any thereof, or sign or file or authorize the filing under the Uniform Commercial Code of any jurisdiction of a financing statement that names any Group Company as debtor, or sign any security agreement authorizing any secured party thereunder to file such Restricted Subsidiary a financing statement, except Liens described in any of the following clauses (includingcollectively, without limitation, their Voting Stock), except:“Permitted Liens”):
(ai) Liens existing on the Closing Date and listed on Schedule 7.02 hereto and any modifications, replacements, renewals or extensions thereof; provided that (A) the Lien does not extend to any additional property other than (x) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 7.01 and (y) proceeds and products thereof, and (B) the renewal, extension or modification of the obligations secured or benefited by such Liens is permitted by Section 7.01;
(ii) Liens created by the Collateral Documents;
(iii) Liens for taxes, assessments or and other governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books;
(bA) Liens imposed by law, such as carriers’, landlords’, warehousemen’s and mechanics’ liens and other similar liens arising in the ordinary course of business which secure payment of obligations not more than 45 that 90 days past due or delinquent, (B) which are being contested in good faith by appropriate proceedings and for as to which adequate reserves have been established in accordance with GAAP shall have been set aside on its booksor (C) which are not otherwise required to be paid in accordance with Section 6.04;
(civ) Liens arising out securing the charges, claims, demands or levies of pledges or deposits under worker’s compensation lawslandlords, unemployment insurancecarriers, old age pensionssuppliers, or other social security or retirement benefitswarehousemen, or similar legislation;
(d) easements (includingmaterialmen, without limitationworkmen, reciprocal easement agreements and utility agreements)mechanics, rights-of-way, covenants, consents, reservations, encroachments, variances carriers and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) like Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments imposed by Law which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bids, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature were incurred in the ordinary course of business by and which (A) do not, individually or in the Borrower or any of its Restricted Subsidiariesaggregate, including Liens to secure obligations under agreements relating to materially detract from the purchase and sale of any commodity (including power purchase and sale agreements, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets value of the Borrower and its Restricted Subsidiaries arising out property or assets which are the subject of obligations such Lien or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested materially impair the use thereof in any municipality or public authority to control or regulate any asset the operation of the business of the Borrower or any of its Restricted Subsidiaries or to use such asset (B) which are being contested in a manner which does not materially impair the use of such asset for the purposes good faith by appropriate proceedings diligently pursued for which it is held adequate reserves (in the good faith judgment of the management of the Borrower) have been established in accordance with GAAP, which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such Lien;
(v) Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness or Swap Obligations incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security and other similar obligations incurred in the ordinary course of business;
(vi) Liens securing obligations in respect of surety bonds (other than appeal bonds), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, indemnity, warranty, release, performance and return-of-money bonds and other similar obligations or with respect to other regulatory requirements, letters of credit, bankers’ acceptances issued and completion guarantees incurred in the ordinary course of business for sums not more than 90 days overdue or being contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP;
(vii) Liens upon specific items or inventory or other goods and proceeds of the Borrower or any of its Restricted SubsidiariesSubsidiaries securing such Person’s obligations in respect of bankers’ acceptances or documentary letters of credit issued or created for the account of such Person to facilitate the shipment or storage of such inventory or other goods;
(kviii) irregularities pledges or deposits of cash and Cash Equivalents securing deductibles, self-insurance, co-payment, co-insurance, retentions or similar obligations to providers of property, casualty or liability insurance in or deficiencies the ordinary course of title business;
(ix) Liens on (A) insurance premiums, dividends and rebates and other identifiable proceeds therefrom which may become payable under insurance policies and loss payments which reduce the incurred premiums on such insurance policies and (B) rights which may arise under State insurance guarantee funds relating to any asset which do such insurance policy, in each case securing Indebtedness permitted to be incurred pursuant to Section 7.01(ix);
(x) Liens arising solely by virtue of any statutory or common Law provision relating to banker’s liens, rights of setoff or similar rights, in each case incurred in the ordinary course of business;
(xi) licenses, sublicenses, leases or subleases granted to third Persons or to the Borrower or its Subsidiaries by the Borrower and its Subsidiaries in the ordinary course of business not materially adversely affect interfering in any material respect with the business of any Group Company and not otherwise prohibited by Section 7.05(xiv);
(xii) zoning restrictions, building codes, land use and other similar Laws and municipal ordinances, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the use of such property by or other minor encumbrances or irregularities of title not securing Indebtedness or Swap Obligations which do not, individually or in the aggregate, materially impair the use of any property in the operation or business of the Borrower or any of its Restricted Subsidiaries in or the normal course value of its such property for the purpose of such business;
(lxiii) Liens arising from precautionary UCC financing statements regarding, and any interest or title of a licensor, lessor or sublessor under, Operating Leases permitted by this Agreement;
(xiv) Liens in favor of licensors, lessors, sublessors, lessees or sublessees securing Operating Leases or other obligations not constituting Indebtedness;
(xv) Liens arising from judgments, decrees or attachments (or securing of appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01;
(xvi) Liens securing Indebtedness permitted to be incurred under Section 7.01(i), (iii), (iv) and (v);
(xvii) any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into Person becomes a Subsidiary of the Borrower or any of its Restricted Subsidiaries and not created in contemplation of such event;
(mxviii) any Lien on any asset securing Debt incurred (other than on the Equity Interests of one or assumed for more Subsidiaries) of any Person existing at the purpose of financing all time such Person is merged or any part consolidated with or into the Borrower or a Subsidiary of the cost Borrower and not created in contemplation of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently with or within 180 days after the acquisition, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving propertyevent;
(oxix) rights any Lien existing on any asset (other than on the Equity Interests of lessees arising under leases entered into one or more Subsidiaries) prior to the acquisition thereof by the Borrower or a Subsidiary of the Borrower and not created in contemplation of such acquisition;
(xx) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition, an Investment permitted by Section 7.06 or a Permitted Joint Venture;
(xxi) Liens on cash and Cash Equivalents securing Swap Obligations;
(xxii) Liens on any assets or Equity Interests of a Foreign Subsidiary of the Borrower securing Indebtedness of such Foreign Subsidiary incurred pursuant to Section 7.01(xii);
(xxiii) Liens in favor of customs and revenue authorities arising as lessor, a matter of Law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(pxxiv) any Liens that might be deemed to exist on or reservations with respect assets subject to governmental and other licensesa repurchase agreement permitted hereunder, permits, franchises, consents and allowances; any if such Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer softwareare deemed to exist solely because of the existence of such repurchase agreement;
(qxxv) any Liens on automobilescreated solely by the deposit of, busesand solely on, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used cash deposited to consummate the Tender Offer or to defease the Existing Notes in connection with any favor of the foregoingtrustee under the indenture governing the Existing Notes or the holders of the Existing Notes;
(rxxvi) Liens in favor of Holdings, the Borrower or any Liens on furniture and furnishingsSubsidiary Guarantor; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;and
(sxxvii) Liens securing letters of credit entered into security given to a public or private utility or any other governmental authority in the ordinary course of business;
(txxviii) Liens granted on the capital stock of Subsidiaries that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary arising given in connection with any Existing Synthetic Lease Financing the issuance of Indebtedness, (ii) relating to pooled deposit or the lease sweep accounts of such property or assets through one or more other Synthetic Lease financings;
(v) Liens by any Wholly-Owned Subsidiary of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower Holdings or any of its Restricted Subsidiaries as lessee to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and all right, title its Subsidiaries or (iii) relating to purchase orders and interest other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(xxix) Liens (i) of a collection bank arising under Section 4-210 of the UCC on items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended (iii) in favor of a banking institution arising as a securitymatter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
(xxx) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Indebtedness of such Unrestricted Subsidiary; provided, that and
(xxxi) other Liens securing Indebtedness permitted under Section 7.01 if the aggregate fair market value amount of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation liabilities secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens thereby does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are available7,500,000 at any time.
Appears in 1 contract
Restriction on Liens. The Borrower will Caxxxxxxx xill not, nor and will it not cause or permit any of its Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Lien upon or with respect to on any property or assets (including Equity Interests or other securities of any kind (real Person, including any Subsidiary of Caxxxxxxx) now owned or personalhereafter acquired by it or on any income or rights in respect thereof, tangible or intangible) except Liens described in any of the Borrower following clauses: Liens existing on the Closing Date and listed on Schedule 7.02 hereto, provided that such Liens shall secure only those obligations which they secure on the date hereof (and permitted extensions, renewals and refinancings of such obligations) and shall not subsequently apply to any other property or assets of Caxxxxxxx xnd its Subsidiaries (other than accessions to and the proceeds of the property or assets subject to such Liens to the extent provided by the terms thereof on the date hereof); existing and future Liens (other than any such Restricted Subsidiary (including, without limitation, their Voting Stock), except:
(aLiens imposed by ERISA or pursuant to any Environmental Law) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings and diligently pursued for which adequate reserves (in the good faith judgment of the management of Caxxxxxxx) have been established in accordance with GAAP shall have been set aside (and as to which the property or assets subject to any such Lien is not yet subject to foreclosure, sale or loss on its books;
(b) account thereof); existing and future Liens imposed by lawlaw securing the charges, such as claims, demands or levies of landlords, carriers’, landlords’, warehousemen’s and , mechanics’ liens , carriers and other similar liens arising like persons which were incurred in the ordinary course of business and which secure payment (A) do not, individually or in the aggregate, materially detract from the value of obligations not more than 45 days past due the property or assets which are the subject of such Lien or materially impair the use thereof in the operation of the business of Caxxxxxxx xr any of its Subsidiaries or (B) which are being contested in good faith by appropriate proceedings and for diligently pursued, which adequate reserves in accordance with GAAP shall proceedings have been set aside on its books;
(c) the effect of preventing the forfeiture or sale of the property or assets subject to such Lien; Liens arising out from judgments, decrees or attachments (or securing of pledges appeal bonds with respect thereto) in circumstances not constituting an Event of Default under Section 8.01; existing and future Liens (other than any Liens imposed by ERISA or pursuant to any Environmental Law) not securing Indebtedness incurred or deposits under worker’s compensation lawsmade in the ordinary course of business in connection with workers' compensation, unemployment insurance, old age pensions, or insurance and other types of social security or retirement benefits, or similar legislation;
(d) easements (including, without limitation, reciprocal easement agreements and utility agreements), rights-of-way, covenants, consents, reservations, encroachments, variances and other restrictions, charges or encumbrances (whether or not recorded) affecting the use of real property;
(e) Liens existing on the Closing Date and described in Schedule 6.07 hereto;
(f) judgment Liens arising from judgments which secure payment of legal obligations that would not constitute a Default under Section 7.01;
(g) any vendor’s Liens, purchase money Liens or any other Lien on any property or asset acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof existing on any such property or asset at the time of acquisition thereof (and not created in anticipation thereof); provided, that, in any such case no such Lien shall extend to or cover any other asset of the Borrower or such Restricted Subsidiaries, as the case may be;
(h) Liens, deposits and/or similar arrangements to secure the performance of bidstenders, tenders or contracts (other than contracts for borrowed money), public or statutory obligations, surety and bonds (other than appeal bonds), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations of a like nature incurred in the ordinary course of business by business; existing and future zoning restrictions, easements, rights of way, licenses, reservations, covenants, conditions, waivers, restrictions on the Borrower use of property or any other minor encumbrances or irregularities of its Restricted Subsidiariestitle not securing Indebtedness or Derivatives Obligations which do not, including Liens to secure obligations under agreements relating to individually or in the purchase and sale of any commodity (including power purchase and sale agreementsaggregate, any commodity hedge or derivative regardless of whether any such transaction is a “financial” or “physical transaction”);
(i) Liens on assets of the Borrower and its Restricted Subsidiaries arising out of obligations or duties to any municipality or public authority with respect to any franchise, grant, license, permit or certificate.
(j) rights reserved to or vested in any municipality or public authority to control or regulate any asset of the Borrower or any of its Restricted Subsidiaries or to use such asset in a manner which does not materially impair the use of such asset for any property in the purposes for which it is held by the Borrower operation or business of Caxxxxxxx xr any of its Restricted Subsidiaries;
(k) irregularities in Subsidiaries or deficiencies of title to any asset which do not materially adversely affect the use value of such property by for the Borrower or any purpose of its Restricted Subsidiaries in such business; Liens securing (A) the normal course of its business;
secured Indebtedness permitted to be incurred under Section 7.01(iii)(A) and (lB) Purchase Money Indebtedness permitted to be incurred under Section 7.01(iv); any Lien existing on any property or asset of any corporation or other entity existing Person at the time such corporation or entity is acquired, merged or consolidated or amalgamated with or into the Borrower or any Person becomes a Subsidiary of its Restricted Subsidiaries and Caxxxxxxx xnd not created in contemplation of such event;
(m) ; any Lien on any asset securing Debt incurred of any Person existing at the time such Person is merged or assumed for the purpose of financing all or any part of the cost of acquiring, constructing or improving such asset; provided, that any such Lien attaches to such asset, solely to extent of the value of the obligation secured by such Lien, concurrently consolidated with or within 180 days after into Caxxxxxxx xr a Subsidiary of Caxxxxxxx xnd not created in contemplation of such event; any Lien existing on any asset prior to the acquisition thereof by Caxxxxxxx xr a Subsidiary of Caxxxxxxx xnd not created in contemplation of such acquisition; existing and future Liens arising solely by virtue of any statutory or common law provision relating to banker's liens, construction or improvement thereof:
(n) any Liens in connection with the issuance of tax-exempt industrial development or pollution control bonds or other similar bonds issued pursuant to Section 103(b) of the Internal Revenue Code of 1986, as amended, to finance all or any part of the purchase price of or the cost of constructing, equipping or improving property;
(o) rights of lessees arising under leases entered into by the Borrower set-off or any of its Restricted Subsidiaries as lessorsimilar rights, in each case incurred in the ordinary course of business;
(p) any ; Liens on or reservations with respect to governmental and other licenses, permits, franchises, consents and allowances; any Liens on patents, patent licenses and other patent rights, patent applications, trade names, trademarks, copyrights, claims, credits, choses in action and other intangible property and general intangibles including, but not limited to, computer software;
(q) any Liens on automobiles, buses, trucks and other similar vehicles and movable equipment; marine equipment; airplanes, helicopters and other flight equipment; and parts, accessories and supplies used in connection with any of the foregoing;
(r) any Liens on furniture and furnishings; and computers and data processing, data storage, data transmission, telecommunications and other facilities, equipment and apparatus, which, in any case, are used primarily for administrative or clerical purposes;
(s) Liens securing letters of credit entered into in the ordinary course of business;
(t) Liens granted on the capital stock of Subsidiaries that are not Restricted Subsidiaries for the purpose of securing the obligations of such Subsidiaries;
(u) Liens in addition to those permitted by clauses (a) through (t) on the property or assets of a Special Purpose Subsidiary Caxxxxxxx xr its Subsidiaries arising in connection with any Existing Synthetic Lease Financing or the lease an asset securitization transaction permitted pursuant to Section 7.01(v); and Liens other than those permitted by clause (i) through clause (xii) of such this Section 7.02 on property or assets through one of Caxxxxxxx xnd its Subsidiaries now owned or more other Synthetic Lease financings;
(v) Liens hereafter acquired by it, or on any Wholly-Owned Subsidiary income or rights in respect thereof, not in excess of the Borrower or any Restricted Subsidiary for the benefit of the Borrower or any such Restricted Subsidiary;
(w) Liens on property which is the subject of a Capital Lease Obligation designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under such lease agreement, whether or not such lease agreement is intended as a security; provided, that the aggregate fair market value of the obligations subject to such Liens shall not at any time exceed $500,000,000;
(x) Liens on property which is the subject of one or more leases designating the Borrower or any of its Restricted Subsidiaries as lessee and all right, title and interest of the Borrower or any of its Restricted Subsidiaries in and to such property and in, to and under any such lease agreement, whether or not any such lease agreement is intended as a security;
(y) Liens arising out of the refinancing, extension, renewal or refunding of any Debt or other obligation secured by any Lien permitted by clauses (a) through (x) of this Section; provided, that such Debt or other obligation is not increased and is not secured by any additional assets;
(z) other Liens on assets or property of the Borrower or any of its Restricted Subsidiaries, other than Liens on the Voting Stock of the Borrower in its Restricted Subsidiaries, so long as the aggregate value of the obligations secured by such Liens does not exceed the greater of $250,000,000 or 15% of the total consolidated assets of the Borrower and its Consolidated Subsidiaries as of the most recent fiscal quarter of the Borrower for which financial statements are availableTangible Net Worth.
Appears in 1 contract
Samples: Revolving Credit Agreement (Carpenter Technology Corp)
