Liens and Related Matters. A. Prohibition on Liens. Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except: (i) Permitted Encumbrances; (ii) Liens created hereunder and pursuant to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis; (iii) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases; (iv) Liens of landlords arising under lease contracts in the ordinary course of business; (v) Liens consisting of rights of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business; (vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition; (vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets; (viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of business; provided that (1) such Liens shall be created within 180 days after the -------- acquisition, construction or improvement of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130 (ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition; (x) Liens incurred in connection with the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries; (xi) Liens securing Additional Secured Indebtedness; (xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof; (xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and (xv) Other Liens securing Indebtedness in an aggregate amount not to exceed $2,000,000 at any time outstanding.
Appears in 1 contract
Liens and Related Matters. A. Prohibition on Liens. Neither Holdings shall notnor the Company will, and shall the Company will not permit any of its the Subsidiaries to, directly (i) create or indirectly, create, incur, assume incur or permit suffer to be created or incurred or to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or upon any of its Subsidiaries, property or assets of any character whether now owned or hereafter acquired, or any upon the income or profits therefrom; (ii) transfer any of such property or assets or the income or profits therefrom for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to payment of its general creditors; (iii) acquire, or file agree or permit have an option to acquire, any property or assets upon conditional sale or other title retention or purchase money security agreement, device or arrangement; (iv) suffer to exist for a period of more than thirty (30) days after the filing ofsame shall have been incurred any Indebtedness or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over its general creditors; (v) sell, assign, pledge or otherwise transfer any accounts or general intangibles for money due or to become due, chattel paper, instruments or documents creating or evidencing a right to payment of money or other receivables, with or without recourse; or (vi) enter into or permit to remain in effectexist any arrangement or agreement, enforceable under applicable law, which directly or indirectly prohibits the Company or any financing statement of the Subsidiaries from creating or incurring any lien, encumbrance, mortgage, pledge, charge, restriction or other similar notice of any Lien with respect to any such property, asset, income or profits security interest other than (1) the restrictions under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created hereunder Revolving Credit Documents as in effect on the Restatement Date and pursuant as amended to the Collateral Documents extent permitted by subsection 6.11 in favor of the Collateral Agent agent thereunder for the benefit of the Lenders and/or lenders and the lenders agent thereunder, (2) the restrictions under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this AgreementSenior Secured Note Documents as in effect on the Restatement Date and as amended to the extent permitted by subsection 6.11, and (3) customary anti-assignment provisions in leases and licensing agreements entered into by the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis;
(iii) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases;
(iv) Liens of landlords arising under lease contracts in the ordinary course of business;
(v) Liens consisting of rights of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of its business; provided that (1) such Liens shall any of the Company or the Subsidiaries may create or incur or suffer to be created within 180 or incurred or to exist:
(i) liens to secure taxes, assessments and other government charges in respect of obligations not overdue or liens on properties to secure claims for labor, material or supplies in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(ii) deposits or pledges made in connection with, or to secure payment of, workmen’s compensation, unemployment insurance, old age pensions or other social security obligations;
(iii) liens in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Company or a Subsidiary, as applicable, shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(iv) liens of carriers, warehousemen, mechanics and materialmen, and other like liens in existence less than 120 days from the date of creation thereof in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(v) encumbrances on Real Property Assets consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto, landlord’s or lessor’s liens under leases or subleases to which the Company or a Subsidiary is a party, and other minor liens or encumbrances none of which in the opinion of the Company interferes materially with the use of the property affected in the ordinary conduct of the business of the Company and the Subsidiaries, which defects do not individually or in the aggregate have a materially adverse effect on the business of the Company and the Subsidiaries on a consolidated basis;
(vi) liens existing on the Restatement Date and listed and described on Schedule 6.2 hereto;
(vii) purchase money security interests in or purchase money mortgages on real or personal property acquired after the -------- acquisitionClosing Date to secure purchase money Indebtedness of the type and amount permitted by subsection 6.1(vii), construction or improvement incurred in connection with the acquisition of such assetsproperty, which security interests or mortgages cover only the real or personal property so acquired;
(viii) liens on tenant improvements securing Indebtedness incurred with respect thereto and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (apermitted under subsection 6.1(v) or (bsubsection 6.1(xi), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130;
(ix) Liens liens created under, or evidenced or governed by, the Senior Secured Note Documents securing Indebtedness permitted pursuant to by subsection 7.1(ix6.1(viii) to and other Note Obligations (as defined in the extent such Liens were Senior Secured Note Documents), as in existence prior to a Permitted Acquisitioneffect on the Closing Date;
(x) Liens incurred liens created under, or evidenced or governed by, the Revolving Credit Documents (or the documents relating to any Permitted Refinancing Indebtedness in connection with the sale or factoring of accounts receivable respect thereof) securing Indebtedness permitted by Permitted Foreign Subsidiariessubsection 6.1(ii);
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and
(xv) Other Liens securing Indebtedness liens on Cash in an aggregate amount not to exceed $2,000,000 5,000,000 utilized to collateralize letters of credit; and
(xii) liens on assets of the Company and the Subsidiaries not otherwise permitted by this subsection; provided that neither the aggregate amount of the obligations secured thereby nor the aggregate fair market value of the assets subject thereto exceeds $500,000 at any time outstanding.
Appears in 1 contract
Liens and Related Matters. A. Prohibition on Liens. Holdings shall Borrower will not, and shall will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien Lien, or file or execute or agree to the execution of any financing statement, on or with respect to to, the assets of Borrower or any property or asset of any kind Subsidiary (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries), whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(ia) Permitted EncumbrancesLiens for taxes, assessments or other governmental charges or levies not yet due and payable, and not required to be paid by Borrower or any of its Subsidiaries under Section 6.6;
(iib) statutory Liens created hereunder of landlords and pursuant Liens of carriers, warehousemen, mechanics, workmen, employees, materialmen and other Liens imposed by law and not required to the Collateral Documents in favor be paid by Borrower or any of the Collateral Agent for the benefit of the Lenders and/or the lenders its Subsidiaries under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basisSection 6.6;
(iiic) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets (other than the assets subject to such Capital Leases;
(ivany Lien imposed by ERISA) Liens of landlords arising under lease contracts incurred or deposits made in the ordinary course of businessbusiness in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money);
(vd) minor Liens consisting on the property or assets of Borrower or any of its Subsidiaries which do not in the aggregate materially detract from the value of such property or assets or materially impair their use in the operation of the business of Borrower or such Subsidiary, as the case may be;
(e) the rights of set-off and offbanker's liens granted or confirmed to the Banks under this Agreement or any other Loan Document and rights of set-set off and banker's liens granted or confirmed to the holders of a customary nature other Debt permitted under this Agreement or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of businessany other Loan Document;
(vif) any Liens in existence on property of any Person at the time such Person becomes a Subsidiary of Borrower or is merged into any Subsidiary of Borrower and not created in contemplation of such event;
(g) attachment, judgment and other similar Liens arising in connection with legal proceedings, provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings; and provided that any such judgment does not constitute an Event of Default;
(h) Liens solely on created by (i) any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made Subsidiary of Borrower in favor of Borrower or (ii) any Subsidiary of Borrower in favor of another Subsidiary of Borrower, securing obligations of such Subsidiary owing to Borrower or another Subsidiary of Borrower (which Liens by Company their terms may not be transferred except to Borrower or another Subsidiary of Borrower);
(i) Liens created hereunder or under any other Loan Document;
(j) Easements, rights-of-way, zoning and similar restrictions and other similar charges or encumbrances now or hereafter existing not interfering with the ordinary conduct of business of Borrower or any of its Subsidiaries Subsidiaries;
(k) Liens and security interests securing purchase money Debt permitted under Section 7.1(h) and Liens and security interests which are Capital Lease Obligations; provided, however, that no Lien or Transitory Subsidiaries security interest referred to in this subsection (k) shall extend to or cover any property other than the related property being acquired or leased (as the case may be);
(l) Liens on real or personal property required in connection with any letter the issuance of intent industrial revenue bonds on behalf of Borrower or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisitionits Subsidiaries;
(viim) Liens existing on the Closing Date securing Debt listed on Schedule 7.1 and any refinancings thereof permitted pursuant to Section 7.1(e);
(n) Liens created or incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness Receivables Program permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of business; provided that (1) such Liens shall be created within 180 days after the -------- acquisition, construction or improvement of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition;
(x) Liens incurred in connection with the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of businessSection 7.13; and
(xvo) Other without duplication of any of the foregoing clauses, other Liens securing Indebtedness obligations of Borrower or its Subsidiaries in an aggregate outstanding principal amount not to exceed exceeding $2,000,000 10,000,000 at any time outstandingtime.
Appears in 1 contract
Sources: Credit Agreement (Flowserve Corp)
Liens and Related Matters. A. Prohibition on Liens. Holdings shall will not, and shall will not permit any of its the Subsidiaries to, directly (i) create or indirectly, create, incur, assume incur or permit suffer to be created or incurred or to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or upon any of its Subsidiaries, property or assets of any character whether now owned or hereafter acquired, or any upon the income or profits therefrom; (ii) transfer any of such property or assets or the income or profits therefrom for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to payment of its general creditors; (iii) acquire, or file agree or permit have an option to acquire, any property or assets upon conditional sale or other title retention or purchase money security agreement, device or arrangement; (iv) suffer to exist for a period of more than thirty (30) days after the filing ofsame shall have been incurred any Indebtedness or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over its general creditors; (v) sell, assign, pledge or otherwise transfer any accounts or general intangibles for money due or to become due, chattel paper, instruments or documents creating or evidencing a right to payment of money or other receivables, with or without recourse; or (vi) enter into or permit to remain in effectexist any arrangement or agreement, enforceable under applicable law, which directly or indirectly prohibits Holdings or any financing statement of the Subsidiaries from creating or incurring any lien, encumbrance, mortgage, pledge, charge, restriction or other similar notice of any Lien with respect to any such property, asset, income or profits security interest other than (1) the restrictions under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created hereunder Revolving Credit Documents as in effect on the Closing Date and pursuant as amended to the Collateral Documents extent permitted by subsection 6.11 in favor of the Collateral Agent agent thereunder for the benefit of the Lenders and/or lenders and the lenders agent thereunder, (2) the restrictions under the Second Priority Term Loan Senior Secured Note Documents as in effect on the Closing Date and as amended to the extent permitted by subsection 6.11, (3) the restrictions under the Opco Credit Agreement securing Loan Parties' obligations under this AgreementDocuments as in effect on the Closing Date and as amended from time to time to the extent permitted by subsection 6.11, (4) prior to the 2009 Indenture Effective Time, the Second Priority Term Loan Credit Agreement and/or restrictions under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis;
Existing Senior Secured Note Documents, and (iii5) Liens arising customary anti-assignment provisions in connection with Capital Leases permitted under subsection 7.1(iii)(a) leases and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases;
(iv) Liens of landlords arising under lease contracts in the ordinary course of business;
(v) Liens consisting of rights of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising licensing agreements entered into by contract or operation of law, incurred in the ordinary course of business;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company Holdings or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of its business; provided that (1) such Liens shall be created within 180 days after the -------- acquisition, construction or improvement of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause that
(a) any of Opco or the Subsidiaries may create or incur or suffer to be created or incurred or to exist:
(b)i) liens to secure taxes, -------- ------- (1) such Liens attach solely assessments and other government charges in respect of obligations not overdue or liens on properties to secure claims for labor, material or supplies in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the assets financed with such Indebtednessextent required by generally accepted accounting principles;
(ii) deposits or pledges made in connection with, or to secure payment of, workmen’s compensation, unemployment insurance, old age pensions or other social security obligations;
(2iii) no recourse may be had under the Indebtedness secured by such Lien against any Person other liens in respect of judgments or awards that have been in force for less than the borrower applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which Holdings or a Subsidiary, as applicable, shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(iv) liens of carriers, warehousemen, mechanics and materialmen, and other like liens in existence less than 120 days from the date of creation thereof in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(v) encumbrances on Real Property Assets consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto, landlord’s or lessor’s liens under leases or subleases to which Holdings or a Subsidiary is a party, and other minor liens or encumbrances none of which in the opinion of Holdings interferes materially with the use of the property affected in the ordinary conduct of the business of Holdings and the Subsidiaries, which defects do not individually or in the aggregate have a materially adverse effect on the business of Holdings and the Subsidiaries on a consolidated basis;
(vi) liens existing on the Closing Date and listed and described on Schedule 6.2 hereto;
(vii) purchase money security interests in or purchase money mortgages on real or personal property acquired after the Closing Date to secure purchase money Indebtedness of the type and amount permitted by subsection 6.1, incurred in connection with the acquisition of such property, which security interests or mortgages cover only the real or personal property so acquired;
(viii) liens on tenant improvements securing Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, incurred with respect thereto and (3) the financial covenants which is permitted under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130subsection 6.1;
(ix) Liens liens upon any of the property or assets of Opco and/or the Subsidiaries created under, or evidenced or governed by, the Senior Secured Note Documents securing Indebtedness permitted pursuant to by subsection 7.1(ix6.1(a)(viii) to and other Note Obligations (as defined in the extent such Liens were Senior Secured Note Documents), as in existence prior to a Permitted Acquisitioneffect on the Closing Date;
(x) Liens incurred liens upon any of the property or assets of Opco and/or the Subsidiaries created under, or evidenced or governed by, the Revolving Credit Documents (or the documents relating to any Permitted Refinancing Indebtedness in connection with the sale or factoring of accounts receivable respect thereof) securing Indebtedness permitted by Permitted Foreign Subsidiariessubsection 6.1(a)(i);
(xi) Liens securing Additional Secured Indebtednessliens on Cash in an amount not to exceed $5,000,000 utilized to collateralize letters of credit;
(xii) Liens liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only Indebtedness incurred under the Existing Senior Secured Note Documents to the documents, the goods covered thereby and the proceeds thereofextent permitted under Section 6.1;
(xiii) Liens upon specific items liens on assets of inventory or other goods Holdings and proceeds the Subsidiaries not otherwise permitted by this subsection; provided that neither the aggregate amount of the Company or obligations secured thereby nor the aggregate fair market value of the assets subject thereto exceeds $500,000 at any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;time outstanding; and
(xiv) Liens encumbering customary initial deposits liens on insurance policies and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course proceeds thereof securing the financing of businesspremiums with respect thereto; and
(xvb) Other Liens Holdings may create or incur or suffer to be created or incurred or to exist:
(i) liens to secure taxes, assessments and other government charges in respect of obligations not overdue or liens on properties to secure claims for labor, material or supplies in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(ii) liens in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which Opco or a Subsidiary, as applicable, shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(iii) liens on insurance policies and the proceeds thereof securing the financing of premiums with respect thereto;
(iv) liens created under, or evidenced or governed by, the Senior Secured Note Documents securing Indebtedness permitted by subsection 6.1(b)(iv) and other Note Obligations (as defined in an aggregate amount not the Senior Secured Note Documents); and
(v) liens created under, or evidenced or governed by, the Revolving Credit Documents (or the documents relating to exceed $2,000,000 at any time outstandingPermitted Refinancing Indebtedness in respect thereof) securing Indebtedness permitted by subsection 6.1(b)(iv).
Appears in 1 contract
Liens and Related Matters. A. (a) Prohibition on Liens. Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or permit to exist exist, directly or indirectly, any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings the Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State UCC or under any similar recording or notice statute, except:
(i) Permitted EncumbrancesLiens for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) not yet due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;
(ii) Liens created hereunder the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business (i) which are not overdue for a period of more than thirty (30) days or (ii) which are being contested in good faith and pursuant to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basisby appropriate proceedings;
(iii) Liens arising consisting of deposits or pledges made in the ordinary course of business in connection with Capital Leases permitted with, or to secure payment of, obligations under subsection 7.1(iii)(a) workers' compensation, unemployment insurance or similar claims or to secure the performance of tenders, bids, contracts, statutory obligations and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leasessimilar obligations;
(iv) Liens constituting encumbrances in the nature of landlords arising under lease contracts zoning restrictions, easements, and rights or restrictions of record on the use of real property, which in the aggregate are not substantial in amount and which do not, in any case, materially detract from the value of such property or impair the use thereof in the ordinary course conduct of business;
(v) purchase money Liens consisting securing any purchase money Indebtedness permitted under Section 10.1(d); provided, that the Lien attaches only to the asset being purchased and does not exceed one hundred percent (100%) of rights the purchase price of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of businesssuch asset;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it and any favor of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to Administrative Agent for the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisitionbenefit of itself and the Lenders arising under the Loan Documents;
(vii) Liens incurred not otherwise permitted by this Section 10.3 and in connection with the purchase or shipping of goods or assets existence on the related assets Closing Date (i) listed on Schedule 6.1(s) and proceeds thereof (ii) which may be reflected on the Lien search reports to be delivered to the Administrative Agent and the Lenders after the Closing Date as described on Schedule 6.1(s) to the extent that such Liens evidence the interests of lessors under Capital Leases (as long as the corresponding Capital Lease Obligation is otherwise permitted hereunder) and operating leases, in favor of each case in the seller or shipper of property subject to such goods or assets;lease, and such other Liens as permitted by the Administrative Agent and Required Lenders; and
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisitionextensions, construction renewals or improvement replacements of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries Lien referred to in the ordinary course of business; clauses (i) through (vii) above provided that (1) such Liens shall be created within 180 days after the -------- acquisitionextension, construction renewal or improvement of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which replacement is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely limited to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition;
(x) Liens incurred in connection with the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and
(xv) Other Liens securing Indebtedness in an aggregate amount not to exceed $2,000,000 at any time outstandingproperty originally encumbered thereby.
Appears in 1 contract
Sources: Credit Agreement (Planvista Corp)
Liens and Related Matters. A. Prohibition on Liens. Holdings shall not, and shall not permit any of its Subsidiaries toNo Obligor or Subsidiary shall, directly or indirectly, create, incur, assume or permit suffer to exist any Lien on upon or with respect to any property or asset of any kind their respective Property (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its SubsidiariesCollateral), whether now owned or hereafter acquired, or sell any income such property or profits therefromassets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets or assign any right to receive income, or file or permit the filing of, or permit to remain in effect, of any financing statement under the UCC or any other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, exceptexcept the following, which are herein collectively referred to as "Permitted Liens":
(ia) Permitted EncumbrancesLiens created pursuant to or permitted by the Security Documents;
(iib) Liens created hereunder in existence on the Original Closing Date and pursuant identified in Schedule 9.07 (excluding, however, following the making of the initial Revolving Credit Loans on the Original Closing Date, Liens securing Indebtedness that was repaid with the proceeds of such Revolving Credit Loans, as indicated on Schedule 7.01(i) to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Original Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis);
(iiic) Liens arising imposed by any Governmental Authority for taxes, assessments or charges not yet due or which are being contested in connection good faith and by appropriate proceedings if adequate reserves with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to respect thereto are maintained on the books of Borrower or cover any Collateral or assets other than the assets subject to such Capital Leasesaffected Subsidiary, as the case may be, in accordance with GAAP;
(ivd) Liens in respect of landlords arising under lease contracts Property of Borrower or any Subsidiary imposed by law which were incurred in the ordinary course of business, such as carriers', warehousemen's, landlords' and mechanics' Liens and other similar Liens arising in the ordinary course of business, in each case for sums the payment of which is not required by Section 9.03;
(ve) Liens consisting pledges or deposits under worker's compensation, unemployment insurance and other social security legislation or the deposits securing the liability to insurance carriers;
(f) pledges or deposits to secure the performance of rights of set-off bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and off-set appeal bonds, performance bonds and other obligations of a customary like nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business;
(vig) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company easements, rights-of-way, restrictions or any of its Subsidiaries minor defects or Transitory Subsidiaries irregularities in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or title incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of businessbusiness and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Real Property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the Real Property subject thereto or interfere with the ordinary conduct of the business of Borrower or any Subsidiary;
(h) Liens upon tangible personal Property acquired after the Original Closing Date by Borrower or any Subsidiary, each of which Liens either (A) existed on such Property before the time of its acquisition and was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost of such Property or improvements thereon; provided provided, however, that (1x) no such Liens Lien shall be created within 180 days after extend to or cover any Property of Borrower or such Subsidiary other than the -------- acquisition, construction or improvement of such assets, Property so acquired and improvements thereon and (2y) the principal amount of Indebtedness secured by any such Liens Lien shall at no time exceed 100%, and % of the proceeds fair market value of such Indebtedness shall be used to provide not less than 75%, of Property at the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or time it was acquired;
(bi) to renew, extend or refinance Liens existing on any Indebtedness described in clause (a); provided that the amount Property of any Person at the time such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended Person becomes a Subsidiary or refinanced which is unpaid and outstanding immediately prior to such renewal, extension merged or refinancing; and provided further, that in the case of clause (a) consolidated with or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens areinto a Subsidiary and, in each case, no more restrictive than those set forth not created in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition;
(x) Liens incurred contemplation of or in connection with such event; provided, however, that such Liens do not extend to any other Property of Borrower or the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xij) Liens (excluding Liens on Collateral) not otherwise permitted hereunder securing obligations not at any time exceeding in the aggregate $15.0 million;
(k) Liens securing Additional Secured Indebtednessobligations under Swap Contracts with any Lender or any Affiliate of any Lender;
(xiil) Liens consisting of judgment or judicial attachment Liens (including prejudgment attachment) the enforcement of which is effectively stayed or payment of which is covered in full (subject to a customary deductible) by insurance or which do not otherwise result in an Event of Default under Section 10(h);
(m) Liens securing reimbursement of obligations in respect of documentary letters Capital Leases solely on Property subject to such Capital Leases;
(n) the Barmet Option and, until the Alchem Closing Date, the Alchem Option, and the right of creditfirst refusal of Barmet to purchase the Facility upon a third party offer therefor pursuant to the terms of the Barmet Supply Agreement and the Barmet Right of First Refusal, each as in effect on the Original Closing Date;
(o) any extension, renewal or replacement of the foregoing; provided, however, that the Liens permitted hereunder shall not cover any additional Indebtedness (other than Indebtedness permitted to be secured hereunder) or Property (other than like Property substituted for Property covered by such Lien);
(p) Liens on the facility of Rock Creek securing Indebtedness incurred pursuant to Section 9.08(i); provided, however, that such Liens attach only do not extend to the documents, the goods covered thereby and the proceeds thereofor cover any Property of Borrower or any other Subsidiary;
(xiiiq) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business[Reserved]; and
(xvr) Other Liens securing the Indebtedness assumed in the Alchem Acquisition on the Property of Alchem securing such Indebtedness as of the Alchem Closing Date; provided, however, that no such Lien extends to or covers any other Property of Borrower or any other Subsidiary. Except with respect to (i) specific Property encumbered pursuant to a Lien permitted to be incurred pursuant to this Section 9.07 or (ii) specific Property to be sold pursuant to an aggregate amount not executed agreement with respect to exceed $2,000,000 at a Disposition consummated in accordance with this Agreement, no Obligor will, nor will any time outstandingof them permit any of their respective Subsidiaries to, directly or indirectly, enter into any agreement after the Original Closing Date (other than the Basic Documents) prohibiting or restricting in any manner (directly or indirectly and including by way of covenant, representation or warranty or event of default) the creation or assumption of any Lien upon its Property, whether now owned or hereafter acquired.
Appears in 1 contract
Liens and Related Matters. A. Prohibition on Liens. Holdings shall The Company will not, and shall will not permit any of its Subsidiaries to, directly (i) create or indirectly, create, incur, assume incur or permit suffer to be created or incurred or to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or upon any of its Subsidiaries, property or assets of any character whether now owned or hereafter acquired, or any upon the income or profits therefrom; (ii) transfer any of such property or assets or the income or profits therefrom for the purpose of subjecting the same to the payment of Indebtedness or performance of any other obligation in priority to payment of its general creditors; (iii) acquire, or file agree or permit have an option to acquire, any property or assets upon conditional sale or other title retention or purchase money security agreement, device or arrangement; (iv) suffer to exist for a period of more than thirty (30) days after the filing ofsame shall have been incurred any Indebtedness or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be given any priority whatsoever over its general creditors; (v) sell, assign, pledge or otherwise transfer any accounts or general intangibles for money due or to become due, chattel paper, instruments or documents creating or evidencing a right to payment of money or other receivables, with or without recourse; or (vi) enter into or permit to remain in effectexist any arrangement or agreement, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits enforceable under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created hereunder and pursuant to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis;
(iii) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases;
(iv) Liens of landlords arising under lease contracts in the ordinary course of business;
(v) Liens consisting of rights of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising by contract or operation of applicable law, incurred in which directly or indirectly prohibits the ordinary course of business;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries from creating or Transitory Subsidiaries incurring any lien, encumbrance, mortgage, pledge, charge, restriction or other security interest other than (1) the restrictions under the Revolving Credit Documents as in connection with any letter of intent or purchase agreement entered into by it effect on the Closing Date and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only as amended to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof by subsection 6.11 in favor of the seller or shipper agent thereunder for the benefit of such goods or assets;
the lenders and the agent thereunder, (viii2) Liens securing Indebtedness the restrictions under the Senior Secured Note Documents as in effect on the Closing Date and as amended to the extent permitted by subsection 7.1(iii)(b6.11, and (3) incurred (a) to finance customary anti-assignment provisions in leases and licensing agreements entered into by the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of its business; provided that (1) such Liens shall any of the Company or its Subsidiaries may create or incur or suffer to be created within 180 or incurred or to exist:
(i) liens to secure taxes, assessments and other government charges in respect of obligations not overdue or liens on properties to secure claims for labor, material or supplies in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(ii) deposits or pledges made in connection with, or to secure payment of, workmen's compensation, unemployment insurance, old age pensions or other social security obligations;
(iii) liens in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which the Company or a Subsidiary of the Company, as applicable, shall at the time in good faith be prosecuting an appeal or proceedings for review and in respect of which a stay of execution shall have been obtained pending such appeal or review;
(iv) liens of carriers, warehousemen, mechanics and materialmen, and other like liens in existence less than 120 days from the date of creation thereof in respect of obligations not overdue or which are being contested in good faith and for which an adequate reserve or other appropriate provisions shall have been made to the extent required by generally accepted accounting principles;
(v) encumbrances on Real Property Assets consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto, landlord's or lessor's liens under leases or subleases to which the Company or a Subsidiary of the Company is a party, and other minor liens or encumbrances none of which in the opinion of the Company interferes materially with the use of the property affected in the ordinary conduct of the business of the Company and its Subsidiaries, which defects do not individually or in the aggregate have a materially adverse effect on the business of the Company and its Subsidiaries on a consolidated basis;
(vi) liens existing on the date hereof and listed and described on Schedule 6.2 hereto;
(vii) purchase money security interests in or purchase money mortgages on real or personal property acquired after the -------- acquisitiondate hereof to secure purchase money Indebtedness of the type and amount permitted by subsection 6.1(v), construction or improvement incurred in connection with the acquisition of such assetsproperty, which security interests or mortgages cover only the real or personal property so acquired;
(viii) liens on tenant improvements securing Indebtedness incurred with respect thereto and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (apermitted under subsection 6.1(v) or (bsubsection 6.1(xi), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130;
(ix) Liens liens created under, or evidenced or governed by, the Senior Secured Note Documents securing Indebtedness permitted pursuant to by subsection 7.1(ix6.1(viii) to and other Note Obligations (as defined in the extent such Liens were Senior Secured Note Documents), as in existence prior to a Permitted Acquisitioneffect on the Closing Date;
(x) Liens incurred liens created under, or evidenced or governed by, the Revolving Credit Documents (or the documents relating to any Permitted Refinancing Indebtedness in connection with the sale or factoring of accounts receivable respect thereof) securing Indebtedness permitted by Permitted Foreign Subsidiariessubsection 6.1(ii);
(xi) Liens securing Additional Secured Indebtednessliens on Cash in an amount not to exceed $5,000,000 utilized to collateralize letters of credit;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds liens on assets of the Company or any of and its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or not otherwise permitted by this subsection; provided that neither the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and
(xv) Other Liens securing Indebtedness in an aggregate amount not to exceed of the obligations secured thereby nor the aggregate fair market value of the assets subject thereto exceeds $2,000,000 500,000 at any time outstanding.
Appears in 1 contract
Liens and Related Matters. A. Prohibition on Liens. Holdings shall (i) The Company will not, and shall will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien Lien, or file or execute or agree to the execution of any financing statement, on or with respect to to, the assets of Company or any property or asset of any kind Subsidiary (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries), whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(iiA) Liens created hereunder for taxes, assessments or other governmental charges or levies not yet due and pursuant payable, and not required to be paid by the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basis;
(iii) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases;
(iv) Liens of landlords arising under lease contracts in the ordinary course of business;
(v) Liens consisting of rights of set-off and off-set of a customary nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisitionunder Section 5.01(e);
(viiB) statutory Liens incurred in connection with of landlords and Liens of carriers, warehousemen, mechanics, workmen, employees, materialmen and other Liens imposed by law and not required to be paid by the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries under Section 5.01(e);
(C) Liens (other than any Lien imposed by ERISA) incurred or deposits made in the ordinary course of business; provided that business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return-of-money bonds and other similar obligations (1) such Liens shall be created within 180 days after the -------- acquisition, construction or improvement exclusive of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness obligations for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisitionborrowed money);
(xD) minor Liens incurred in connection with on the sale property or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds assets of the Company or any of its Subsidiaries securing such Person's obligations which do not in respect of bankers' acceptance issued or created or the account aggregate materially detract from the value of such Person to facilitate property or assets or materially impair their use in the purchaseoperation of the business of the Company or such Subsidiary, shipment or storage of such inventory or other goodsas the case may be;
(xivE) the rights of set-off and banker's liens granted or confirmed to the Lenders under this Agreement or any other Loan Document and rights of set-off and banker's liens granted or confirmed to the holders of other Debt permitted under this Agreement or any other Loan Document;
(F) any Liens in existence on property of any Person at the time such Person becomes a Subsidiary of the Company or is merged into any Subsidiary of the Company and not created in contemplation of such event;
(G) attachment, judgment and other similar Liens arising in connection with legal proceedings, provided that the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being contested in good faith by appropriate proceedings; and provided that any such judgment does not constitute an Event of Default;
(H) Liens encumbering customary initial deposits and margin depositscreated by (x) any Subsidiary of the Company in favor of the Company or (y) any Subsidiary of the Company in favor of another Subsidiary of the Company, and similar securing obligations of such Subsidiary owing to the Company or another Subsidiary of the Company (which Liens attaching by their terms may not be transferred except to commodity trading accounts the Company or other brokerage accounts incurred in another Subsidiary of the ordinary course of business; andCompany);
(xvI) Other Liens securing Indebtedness in an aggregate amount not to exceed $2,000,000 at created hereunder or under any time outstanding.other Loan Document;
Appears in 1 contract
Sources: Credit Agreement (Bwip Inc)
Liens and Related Matters. A. (a) Prohibition on Liens. Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, createCreate, incur, assume or permit to exist exist, -------------------- directly or indirectly, any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings such Borrower or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State UCC or under any similar recording or notice statute, except:
(i) Permitted EncumbrancesLiens for taxes, assessments and other governmental charges or levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or Environmental Laws) not yet due or as to which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired or which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;
(ii) Liens created hereunder the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business (x) which are not overdue for a period of more than thirty (30) days or (y) which are being contested in good faith and pursuant to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basisby appropriate proceedings;
(iii) Liens arising consisting of deposits or pledges made in the ordinary course of business in connection with Capital Leases permitted with, or to secure payment of, obligations under subsection 7.1(iii)(a) workers' compensation, unemployment insurance or similar claims or to secure the performance of tenders, bids, contracts, statutory obligations and Section 7.9; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leasessimilar obligations;
(iv) Liens constituting encumbrances in the nature of landlords arising under lease contracts zoning restrictions, easements, and rights or restrictions of record on the use of real property, which in the aggregate are not substantial in amount and which do not, in any case, materially detract from the value of such property or impair the use thereof in the ordinary course conduct of business;
(v) Liens consisting in favor of rights the Administrative Agent for the benefit of set-off itself and off-set of a customary nature or bankers' liens on amounts of depositthe Lenders, whether Interest Rate Hedgers, Existing Lender Payees and Agent Noteholder arising by contract or operation of law, incurred in under the ordinary course of businessLoan Documents;
(vi) Liens solely not otherwise permitted by this Section 10.3 and in ------------ existence on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company or any of its Subsidiaries or Transitory Subsidiaries in connection with any letter of intent or purchase agreement entered into by it the Closing Date (x) listed on Schedule 6.1(s) and any of the foregoing Liens (y) which --------------- may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only reflected on the Lien search reports to be delivered to the Administrative Agent and the Lenders after the Closing Date as described on Schedule 6.1(s) to the extent that Company would have been permitted to create or incur such Liens with respect evidence the interests of --------------- lessors under Capital Leases (as long as the corresponding Capital Lease Obligation is otherwise permitted hereunder) and operating leases, in each case in the property subject to a Permitted Acquisition;such lease, and such other Liens as permitted by the Administrative Agent and Required Lenders; and
(vii) Liens incurred in connection with the purchase extensions, renewals or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement replacements of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries Lien referred to in the ordinary course of business; clauses (i) through (vi) above provided that (1) such Liens shall be created within 180 days after the extension, renewal -------- acquisition, construction or improvement of such assets, and (2) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which replacement is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely limited to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition;
(x) Liens incurred in connection with the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and
(xv) Other Liens securing Indebtedness in an aggregate amount not to exceed $2,000,000 at any time outstandingproperty originally encumbered thereby.
Appears in 1 contract
Sources: Credit Agreement (Planvista Corp)
Liens and Related Matters. A. Prohibition on Liens. Neither Holdings nor Company shall, nor shall not, and shall not it permit any of its Subsidiaries to, directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or asset of any kind (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing statement or other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens created hereunder and granted pursuant to the Collateral Documents in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basisDocuments;
(iii) Liens arising described in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9Schedule 7.2 annexed hereto; provided that no such Lien shall -------- extend to or cover any Collateral or assets other than the assets subject to such Capital Leases;------------
(iv) Liens of landlords arising under lease contracts in the ordinary course of business;
(v) Liens consisting of rights of set-off and off-set of a customary nature on real property or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business;
(vi) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made tangible personal property not heretofore owned by Company or any of its Subsidiaries (any such property, including any present or Transitory Subsidiaries future fixed improvements thereon, being "New Property"), in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred each case arising from (a) to finance the acquisitiongiving, simultaneously with or within 30 days after the acquisition or construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries thereof, of purchase money Liens (including vendors' rights under purchase contracts under an agreement whereby title is retained for the purpose of securing the purchase price thereof) on any New Property hereafter acquired or constructed by Company or any of its Subsidiaries, or (b) from the extension, renewal or replacement of any Indebtedness secured by any of the foregoing Liens so long as the aggregate principal amount thereof and the security therefor is not thereby increased; provided, however, that in the ordinary course of business; provided that each case (1X) such Liens shall be created within 180 days after the Lien is limited to -------- acquisition, construction or improvement of ------- such assets, New Property and (2Y) the principal amount of Indebtedness secured by any such Liens shall at no time exceed 100%, and the proceeds of such Indebtedness shall be used to provide not less than 75%, of the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or (b) to renew, extend or refinance any Indebtedness described in clause (a); provided that the amount of any such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended or refinanced which is unpaid and outstanding immediately prior to such renewal, extension or refinancing; and provided further, that in the case of clause (a) or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than shall not exceed the borrower cost of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens are, in each case, no more restrictive than those set forth in this Agreement; 130
(ix) Liens securing Indebtedness permitted pursuant New Property to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisition;
(x) Liens incurred in connection with the sale or factoring of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof;
(xiii) Liens upon specific items of inventory or other goods and proceeds of the Company or any of its Subsidiaries securing Subsidiaries; and provided, further that the Indebtedness -------- ------- secured by such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of businessis permitted under subsection 7.1(iii)(b); and
(xvv) Other Liens securing Indebtedness of Company and its Subsidiaries in an aggregate amount not to exceed $2,000,000 2,500,000 at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Wec Co)
Liens and Related Matters. A. Prohibition on Liens. Holdings shall not, and shall not permit any of its Subsidiaries toNo Obligor or Subsidiary ------------------------- shall, directly or indirectly, create, incur, assume or permit suffer to exist any Lien on upon or with respect to any property or asset of any kind their respective Property (including any document or instrument in respect of goods or accounts receivable) of Holdings or any of its SubsidiariesCollateral), whether now owned or hereafter acquired, or sell any income such property or profits therefromassets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets or assign any right to receive income, or file or permit the filing of, or permit to remain in effect, of any financing statement under the UCC or any other similar notice of any Lien with respect to any such property, asset, income or profits under the Uniform Commercial Code of any State or under any similar recording or notice statute, except:except the following, which are herein collectively referred to as "Permitted --------- Liens": -----
(ia) Permitted EncumbrancesLiens created pursuant to or permitted by the Security Documents;
(iib) Liens created hereunder in existence on the date hereof and pursuant to identified in Schedule 9.07; -------------
(c) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the Collateral Documents books of Borrower or the affected Subsidiary, as the case may be, in favor of the Collateral Agent for the benefit of the Lenders and/or the lenders under the Second Priority Term Loan Credit Agreement securing Loan Parties' obligations under this Agreement, the Second Priority Term Loan Credit Agreement and/or under Hedge Agreements accordance with any such Lenders 129 and/or lenders or their respective affiliates; provided that such Liens for -------- the benefit of the lenders under this Agreement shall at all times secure the Obligations on a First Priority basisGAAP;
(iiid) Liens arising in connection with Capital Leases permitted under subsection 7.1(iii)(a) and Section 7.9; provided that no such Lien shall -------- extend to respect of Property of Borrower or cover any Collateral or assets other than the assets subject to such Capital Leases;
(iv) Liens of landlords arising under lease contracts Subsidiary imposed by law which were incurred in the ordinary course of business, such as carriers', warehousemen's, landlords' and mechanics' Liens and other similar Liens arising in the ordinary course of business, in each case for sums the payment of which is not required by Section 9.03;
(ve) Liens consisting Pledges or deposits under worker's compensation, unemployment insurance and other social security legislation or the deposits securing the liability to insurance carriers;
(f) Pledges or deposits to secure the performance of rights of set-off bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and off-set appeal bonds, performance bonds and other obligations of a customary like nature or bankers' liens on amounts of deposit, whether arising by contract or operation of law, incurred in the ordinary course of business;
(vig) Liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇ money deposits made by Company Easements, rights-of-way, restrictions or any of its Subsidiaries minor defects or Transitory Subsidiaries irregularities in connection with any letter of intent or purchase agreement entered into by it and any of the foregoing Liens may be created or title incurred by Holdings in connection with a Permitted Acquisition by or through Transitory Subsidiary only to the extent that Company would have been permitted to create or incur such Liens with respect to a Permitted Acquisition;
(vii) Liens incurred in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of the seller or shipper of such goods or assets;
(viii) Liens securing Indebtedness permitted by subsection 7.1(iii)(b) incurred (a) to finance the acquisition, construction or improvement of any real property or tangible personal property assets acquired or held by Company or any of its Subsidiaries in the ordinary course of businessbusiness and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of Real Property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the Real Property subject thereto or interfere with the ordinary conduct of the business of Borrower or any Subsidiary;
(h) Liens upon tangible personal Property acquired after the Original Closing Date by Borrower or any Subsidiary, each of which Liens either (A) existed on such Property before the time of its acquisition and was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost of such Property or improvements thereon; provided provided, however, that (1x) no such Liens Lien shall be created within 180 days after -------- ------- extend to or cover any Property of Borrower or such Subsidiary other than the -------- acquisition, construction or improvement of such assets, Property so acquired and improvements thereon and (2y) the principal amount of Indebtedness secured by any such Liens Lien shall at no time exceed 100%, and % of the proceeds fair market value of such Indebtedness shall be used to provide not less than 75%, of Property at the original purchase price of such asset or the amount expended to construct or improve such asset, as the case may be; or time it was acquired;
(bi) to renew, extend or refinance Liens existing on any Indebtedness described in clause (a); provided that the amount Property of any Person at the time such Indebtedness does not exceed the -------- amount of Indebtedness so renewed, extended Person becomes a Subsidiary or refinanced which is unpaid and outstanding immediately prior to such renewal, extension merged or refinancing; and provided further, that in the case of clause (a) consolidated with or (b), -------- ------- (1) such Liens attach solely to the assets financed with such Indebtedness, (2) no recourse may be had under the Indebtedness secured by such Lien against any Person other than the borrower of such Indebtedness for the payment of principal, interest, fees, costs or premium on such Indebtedness or for any claim based thereon, and (3) the financial covenants under any Indebtedness secured by such Liens areinto a Subsidiary and, in each case, no more restrictive than those set forth not created in this Agreementcontemplation of or in connection with such event; 130provided, however, that such Liens do -------- ------- not extend to any other Property of Borrower or the Subsidiaries;
(ixj) Liens (excluding Liens on Collateral) not otherwise permitted hereunder securing obligations not at any time exceeding in the aggregate $15,000,000;
(k) Liens securing Indebtedness permitted pursuant to subsection 7.1(ix) to the extent such Liens were in existence prior to a Permitted Acquisitionobligations under Swap Contracts with any Lender or any Affiliate of any Lender;
(xl) Liens incurred consisting of judgment or judicial attachment Liens (including prejudgment attachment) the enforcement of which is effectively stayed or payment of which is covered in full (subject to a customary deductible) by insurance or which do not otherwise result in an Event of Default under Section 10(h);
(m) Liens securing obligations in respect of Capital Leases solely on Property subject to such Capital Leases;
(n) The Commonwealth Option and the Commonwealth Right of First Refusal;
(o) Any extension, renewal or replacement of the foregoing; provided, however, that the Liens permitted hereunder shall -------- ------- not cover any additional Indebtedness (other than Indebtedness permitted to be secured hereunder) or Property (other than like Property substituted for Property covered by such Lien); and
(p) Liens in favor of the SPS or the Receivables Financier created or deemed to exist in connection with the sale or factoring Permitted Receivables Financing (including any related filings of accounts receivable by Permitted Foreign Subsidiaries;
(xi) Liens securing Additional Secured Indebtedness;
(xii) Liens securing reimbursement of obligations in respect of documentary letters of credit; providedany financing statements), that such Liens attach but only to the documentsextent that any such Lien relates to the applicable Transferred Assets actually sold, contributed, financed or otherwise conveyed or pledged pursuant to such transaction. Except with respect to (i) specific Property encumbered pursuant to a Lien permitted to be incurred pursuant to this Section 9.07, (ii) specific Property to be sold pursuant to an executed agreement with respect to a Disposition consummated in accordance with this Agreement, or (iii) the goods covered thereby documents and instruments executed in connection with the proceeds thereof;Permitted Receivables Financing (but only to the extent that the related prohibitions against other Liens pertain to the applicable Transferred Assets actually sold, contributed, financed or otherwise conveyed or pledged pursuant to the Permitted Receivables Financing), no Obligor will, nor will any of them permit any of their respective Subsidiaries to, directly or indirectly, enter into any agreement (other than the Basic Documents) prohibiting or restricting in any manner (directly or indirectly and including by way of covenant, representation or warranty or event of default) the creation or assumption of any Lien upon its Property, whether now owned or hereafter acquired.
(xiii) Liens upon specific items of inventory or other goods and proceeds 2.11 Amendment to Section 9.08. Section 9.08 of the Company or any of Credit Agreement is hereby amended to read in its Subsidiaries securing such Person's obligations in respect of bankers' acceptance issued or created or the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
(xiv) Liens encumbering customary initial deposits and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business; and
(xv) Other Liens securing Indebtedness in an aggregate amount not to exceed $2,000,000 at any time outstanding.entirety as follows:
Appears in 1 contract