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LUX » Topics » as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property.This excerpt taken from the LUX 6-K filed Jul 11, 2008. as, the holders of the Notes may be entitled under applicable law, of an equitable Lien on such property.(b) Paragraph (a) above shall not apply to the following Liens (each a “Permitted Lien”):(i) any netting or set-off or other similar Lien arrangement entered into by any member of the Group in the ordinary course of its banking arrangements in favor of a bank;(ii) any Lien arising by operation of law and in the ordinary course of trading;(iii) any Lien over or affecting any asset acquired by a member of the Group after the date of the Closing if:(A) the Lien was in existence on the date of such acquisition and was not created in contemplation of the acquisition of that asset by a member of the Group; and(B) the principal amount secured has not been increased in contemplation of or since the acquisition of that asset by a member of the Group;(iv) any Lien over or affecting any asset of any company that becomes a member of the Group after the date of the Closing (a “Newly-Acquired Subsidiary”), where the Lien is created prior to the date on which the Newly-Acquired Subsidiary becomes a member of the Group, if:(A) the Lien was in existence on the date of such acquisition and was not created in contemplation of the acquisition of the Newly-Acquired Subsidiary; and(B) the principal amount secured has not increased in contemplation of or since the acquisition of the Newly-Acquired Subsidiary other than as permitted by a revolving credit facility or other arrangement entered into by the Newly-Acquired Subsidiary that is in effect at the time of, and not entered into in contemplation of, the acquisition;(v) any Lien created with the prior written consent of the Required Holders;(vi) any Lien over goods and documents of title to goods arising in the ordinary course of letter of credit transactions entered into in the ordinary course of trading;(vii) any Lien existing on the date of Closing and disclosed in writing to the purchasers of the Notes on Schedule 10.4 hereto and any Lien securing Indebtedness that refinances the Indebtedness secured by any such existing Lien so long as the principal amount of
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the Indebtedness secured by such Lien does not increase and such Lien is not extended to other property;(viii) any Lien for taxes, assessments or other governmental charges not yet delinquent or being contested in good faith;(ix) any Lien incidental to the normal conduct of the business of the Parent or any Subsidiary or the ownership of their properties or assets which are not incurred in connection with the incurrence of any Indebtedness and which do not in the aggregate materially impair the use of such property in the operation of the business of the Group taken as a whole or materially impair the value of such properties for the purpose of such business, including, without limitation, Liens (i) in connection with workers’ compensation, unemployment insurance, social security and other like laws; (ii) to secure (or to obtain letters of credit that secure) the performance of tenders, statutory obligations, surety and performance bonds, bids, leases (other than capital leases), purchase, construction or sales contracts and other similar obligations, in each case not incurred or made in connection with the borrowing of money, the obtaining of advances or credit or other payment of the deferred purchase price of property; (iii) to secure the claims of mechanics, materialmen, carriers, warehousemen, vendors, repairmen, landlords, lessors and other like Persons, arising in the ordinary course of business, and (iv) in the nature of reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other similar title exceptions or encumbrances affecting real property, in the case of each of the foregoing clauses (i), (ii), (iii) and (iv), provided that any amounts secured by such Liens are not overdue;(x) any Lien in respect of judgments and awards to the extent that such judgments or awards are being contested in good faith and adequate insurance or appropriate reserves are maintained with respect thereto on the books of the Parent and its Subsidiaries to the extent required by GAAP;(xi) any Lien on fixed assets (or any improvement thereon) or in rights relating thereto, in each case, acquired or constructed by the Parent or any Subsidiary after the date of the Closing to secure Indebtedness of the Parent or such Subsidiary incurred in connection with such acquisition or construction, provided that (i) no such Lien shall extend to or cover any property other than the property (or improvement thereon) being acquired or constructed, (ii) the amount of Indebtedness secured by any such Lien shall not exceed an amount equal to the lesser of (A) the cost to the Parent or such Subsidiary of the property (or improvement thereon) being acquired or constructed or (B) the fair market value (as determined in good faith by the Parent) of such property, determined at the time of such acquisition or at the time of substantial completion of such construction, and (iii) such Lien shall be created concurrently with or within 120 days after such acquisition or the substantial completion of such construction; and
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(xii) any Lien securing Indebtedness or other obligations, so long as such Indebtedness or other obligations (when aggregated with all other Priority Debt outstanding as at the time of granting such Lien or entering into such transaction, as the case may be) does not exceed 20% of Consolidated Shareholders’ Equity as of the last day of the most recent fiscal period for which Consolidated Financial Statements or Consolidated Quarterly Financial Statements (as the case may be) have been provided to holders of the Notes immediately preceding the date on which any such Lien is incurred; provided, however, that, notwithstanding the foregoing, the Parent and the Company will not, and will not permit any Subsidiary to, grant or allow to remain in force any Liens permitted by this clause (xii) to secure Indebtedness outstanding under or pursuant to any banking facility or facilities unless and until the Notes shall be concurrently secured, equally and ratably with such Indebtedness, pursuant to documentation in form and substance satisfactory to the Required Holders. For purposes of this proviso, the phrase “banking facility or facilities” shall mean any bank facility or facilities to which any of the Parent, the Company or any Subsidiary is a party that provides for financing, individually or in the aggregate, in excess of US$200,000,000. |
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