Limitation on Secured Debt. The Issuer will not (nor will the Issuer permit any of its Subsidiaries to) create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by: (a) purchase money mortgages created to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property; (b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition; (c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary; (d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property; (e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license; (f) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer; (g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof; (h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or (i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.
Appears in 5 contracts
Samples: Indenture, Indenture (Broadcom Inc.), Indenture (Broadcom Inc.)
Limitation on Secured Debt. The Issuer Borrower will not (create, assume, incur or guarantee, nor will the Issuer it permit any of its Subsidiaries to) to create, assume, incur or guarantee guarantee, any Secured Debt without making effective provision for securing Debt, in each case, unless prior to or at the Notes same time, the Borrower Obligations are equally and ratably secured with (or, at the Borrower’s option, senior to) such Secured DebtDebt until such time as such Secured Debt is no longer secured by such Lien. The foregoing restrictions in the immediately preceding sentence shall restriction does not apply, however, apply to debt Secured Debt that is secured by:
(a1) purchase money mortgages created Liens on property or assets of or securing Indebtedness of any Person existing at the time such Person becomes a Subsidiary (including by way of merger or consolidation with the Borrower or any Subsidiary), provided that (i) such Lien was not incurred in anticipation of such Person becoming a Subsidiary,(ii) such Lien shall not apply to any other property or Indebtedness of the Borrower or any Subsidiary other than additions, accessions, parts, attachments or improvements thereon or proceeds thereof and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, subject, in the case of clause (iii), to extensions, renewals or replacements in accordance with clause (14) below;
(2) Liens on property or assets existing at the time of acquisition by the Borrower or any Subsidiary of such property or assets (which may include property or assets previously leased by the Borrower or any Subsidiary and leasehold interests on such property or assets, provided that the lease terminates prior to or upon such acquisition) or Liens on property or assets to secure the payment for of all or any part of the acquisitionpurchase price of such property or assets, construction or improvement of any Property including, but not limited to, Liens on property or assets to secure any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 12 months after after, the later latest of the acquisitionacquisition of such property or assets or the completion of construction, the completion of construction (including any improvements on an existing property) or the commencement of substantial commercial operations operation of such Property, which Indebtedness is incurred property or assets for the purpose of financing all or any part of the purchase price of the property or assets and related costs and expenses, or such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance making of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuerimprovements; provided that no (i) the Indebtedness secured by such Liens shall not exceed 100% of the cost of acquiring, constructing or improving such property or assets and (ii) such security interests shall extend not apply to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f) security interests on any Property property or assets of the Issuer Borrower or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer other than additions, accessions, parts, attachments or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued improvements thereon or proceeds thereof, subject in the ordinary course case of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
clause (i) any extension), renewal or replacement, or successive to extensions, renewals or replacements, replacements in whole or in part, of any security interest referred to in the foregoing clauses accordance with clause (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h14) is subject thereto.below;
Appears in 3 contracts
Samples: Five Year Revolving Credit Agreement (Kyndryl Holdings, Inc.), Revolving Credit Agreement (Kyndryl Holdings, Inc.), Term Loan Credit Agreement (Kyndryl Holdings, Inc.)
Limitation on Secured Debt. The Issuer So long as any of the Notes remain Outstanding, the Guarantor will not (nor will the Issuer permit any of its Subsidiaries to) create, assume, create or guarantee incur any Secured Debt without making effective provision for securing in any such case effectively providing concurrently with the creation or incurrence of any such Secured Debt that the Notes then Outstanding (together with, if the Guarantor shall so determine, any other Debt of or guarantee by the Guarantor ranking equally with the Guarantee and then existing or thereafter created) shall be secured equally and ratably with (or, at the option of the Guarantor, prior to) such Secured Debt. The foregoing restrictions , unless immediately after the incurrence of such Secured Debt (and after giving effect to the application of the proceeds, if any, therefrom), the aggregate principal amount of all such Secured Debt, together with the aggregate amount of Capitalized Rent in the immediately preceding sentence shall respect of Sale and Leaseback Transactions (other than Sale and Leaseback Transactions described in clauses (a) to (e), inclusive, of Section 3.7), would not applyexceed 10% of Consolidated Capitalization; provided, however, to debt that the foregoing restrictions shall not apply to, and there shall be excluded in computing Secured Debt for the purpose of such restrictions, Secured Debt secured by:
(a) purchase money mortgages created Liens on property existing at the time of acquisition of such property by the Guarantor, or Liens to secure the payment for of all or any part of the acquisitionpurchase price of property acquired or constructed by the Guarantor (including any improvements to existing property) created at the time of or within 270 days following the acquisition of such property by the Guarantor, construction or improvement of Liens to secure any Property including, but not limited to, any Indebtedness Secured Debt incurred by the Issuer or a Subsidiary of the Issuer Guarantor prior to, at the time of, of or within 18 months after 270 days following the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations acquisition of such Propertyproperty, which Indebtedness Secured Debt is incurred for the purpose of financing all or any part of the purchase price thereof; provided, however, that in the case of any such acquisition, the Lien shall not apply to any property theretofore owned by the Guarantor (including property transferred by the Guarantor to any subsidiary of the Guarantor in contemplation of or in connection with the creation of such Property Lien) or to any property of the Guarantor other than the property so acquired (other than, in the case of construction or improvements improvement, any theretofore unimproved real property or portion thereof on such Propertywhich the property so constructed, or the improvement, is located);
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Liens on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person (i) existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer Guarantor or at the time of a sale, lease, lease or other disposition of the Properties properties of a Person as an entirety or substantially as an entirety to the Issuer Guarantor, (ii) resulting from such merger, consolidation, sale, lease or a Subsidiary disposition by virtue of any Lien on property granted by the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary Guarantor prior to such acquisition merger, consolidation, sale, lease or disposition (and not in contemplation thereof or in connection therewith) which applies to other Principal Property thereafter after-acquired property of the Guarantor or (iii) resulting from such merger, consolidation, sale, lease or disposition pursuant to a Lien or contractual provision granted or entered into by such Person prior to such merger, consolidation, sale, lease or disposition (and not at the request of the Guarantor); provided, however, that any such Lien referred to in clause (i) shall not apply to any property of the Guarantor other than additions the property subject thereto at the time such Person or improvements properties were acquired and any such Lien referred to in clause (ii) or (iii) shall not apply to any property of the acquired PropertyGuarantor other than the property so acquired;
(ec) security interests Liens existing on Property the date of the Issuer or Property of a Subsidiary of the Issuer this Indenture;
(d) Liens in favor of the United States of America a government or any state thereofgovernmental entity to secure partial progress, advance or other payments, or in favor of other obligations, pursuant to any other country, contract or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract statute or to secure Indebtedness any Debt incurred for the purpose of financing all or any part of the purchase price for the cost of acquiring, constructing or improving the Property property subject to such Liens (including, without limitation, Liens incurred in connection with pollution control, industrial revenue, private activity bond or similar financing);
(e) Liens arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulation, which Lien is required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege, franchise franchise, license or licensepermit;
(f) security interests on Liens for taxes, assessments or governmental charges or levies not yet delinquent or governmental charges or levies already delinquent, the validity of which charge or levy is being contested in good faith and for which any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerreserves required in accordance with generally accepted accounting principles have been established;
(g) liens securing reimbursement obligations Liens (including judgment liens) arising in connection with respect to letters of credit related to trade payables and issued legal proceedings so long as such proceedings are being contested in good faith and, in the ordinary course case of businessjudgment liens, execution thereon is stayed and for which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;any reserves required in accordance with generally accepted accounting principles have been established; and
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest Lien referred to in the foregoing clauses (a)-(ha) to (g), inclusive; to the extent provided, however, that the principal amount thereof is of Secured Debt secured thereby shall not increased other than by transaction costs and premiumsexceed the principal amount of Secured Debt secured thereby at the time of such extension, if anyrenewal or replacement, and no additional Principal Property other than Principal Property permitted that such extension, renewal or replacement shall be limited to be all or a part of the property which secured the Lien so secured under the foregoing clauses extended, renewed or replaced (a)-(h) is subject theretoplus improvements to such property).
Appears in 2 contracts
Samples: Indenture (Aerial Communications Inc), Indenture (American Portable Telecom Inc)
Limitation on Secured Debt. (a) The Issuer Company will not, and will not (nor will the Issuer permit any of its Restricted Subsidiaries to) to create, assumeincur, issue, assume or guarantee any Secured Debt indebtedness for borrowed money secured by a Mortgage on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at the Company’s option, with any other indebtedness created, issued, assumed or guaranteed by the Company or any of its Restricted Subsidiaries then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Secured Debt. indebtedness for so long as such indebtedness is so secured.
(b) The foregoing restrictions in provisions of Section 4.06(a) hereof will not apply to indebtedness secured by any of the immediately preceding sentence shall not apply, however, to debt secured byfollowing:
(a1) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by the Company or any of its Restricted Subsidiaries after the date of this Indenture to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is indebtedness incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty, in each case, to the extent that the original indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether the Company or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionsame;
(c3) security interests Mortgages on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person existing at the time the Company or any Restricted Subsidiary merges or consolidates with such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, the Company or other disposition any Restricted Subsidiary acquires all or substantially all of the Properties properties of a Person as an entirety or substantially as an entirety such Person;
(4) Mortgages to the Issuer or a secure indebtedness of any Restricted Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements Company to the acquired PropertyCompany or another Restricted Subsidiary;
(e5) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer Mortgages in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests governmental bodies to secure Indebtedness of the pollution control partial, progress, advance or industrial revenue type) in order other payments pursuant to permit the Issuer any contract or any Subsidiary of the Issuer to perform a contract statute or to secure Indebtedness indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or indebtedness subject to such Mortgages or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(f6) security interests on any Property or assets Mortgages to secure indebtedness, together with all other indebtedness incurred under this clause (6) not to exceed, at the time of incurrence and after application of the Issuer or any Subsidiary of the Issuer proceeds therefrom, an aggregate amount equal to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer$3.25 billion;
(g7) liens securing reimbursement obligations with respect to letters extensions, renewals or replacements of credit related to trade payables and issued in any Mortgage existing on the ordinary course date of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer this Indenture or any Mortgage referred to above; provided that the principal amount of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any indebtedness secured thereby may not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, premiums, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement will be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of capital stock or replacementsindebtedness that was subject to the Mortgage so extended, renewed or replaced;
(8) Mortgages on accounts receivables and related assets of the Company and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and
(9) Permitted Liens.
(c) Notwithstanding the restrictions in whole Section 4.06(a), the Company and any of its Restricted Subsidiaries may create, incur, issue, assume or in partguarantee indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a) or (b), if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any security interest referred indebtedness that is concurrently being retired, the aggregate amount of all such indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any indebtedness secured by Mortgages described in clauses (a)-(h1) through (9) of Section 4.06(b); to ) plus the extent that the principal aggregate amount thereof is not increased (without duplication) of (x) all Non-Guarantor Subsidiary Debt (as defined below) (other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing Non-Guarantor Subsidiary Debt described in clauses (a)-(h1) through (7) of Section 4.07(b)) and (y) all Attributable Debt of the Company and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that are permitted under clauses (1) and (2) of Section 4.08(a)) does not exceed 15% of the Consolidated Net Tangible Assets of the Company as of the date on which any such indebtedness is subject theretoincurred.
Appears in 2 contracts
Samples: Indenture (Huntsman International LLC), Indenture (Huntsman International LLC)
Limitation on Secured Debt. The Issuer Guarantor will not, and will not (nor will the Issuer permit any of its Subsidiaries to) , create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes Securities equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
by (ai) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Property;
property, (bii) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to herein as security interests) on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer Guarantor or a Subsidiary any of the Issuerits Subsidiaries, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(ciii) security interests on Property property or shares of capital stock or indebtedness of any Person corporation or firm existing at the time such Person corporation or firm becomes a Subsidiary;
, (div) security interests on Property in property or shares of capital stock or indebtedness of a Person corporation existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries or at the time of a sale, lease, or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer Guarantor or a Subsidiary any of the Issuer; its Subsidiaries, provided that no such security interests shall extend to any other Principal Property of the Issuer Guarantor or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
property, (ev) security interests on Property property of the Issuer Guarantor or Property any of a Subsidiary of the Issuer its Subsidiaries in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Guarantor or any Subsidiary of the Issuer its Subsidiaries to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
, (fvi) security interests on any Property property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness indebtedness owing by it to the Issuer Guarantor or any to another Subsidiary of the Issuer;
Guarantor, (gvii) any mechanics’, materialmen’s, carriers’ or other similar lien arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not yet due or which are being contested in good faith, (viii) any security interest for taxes, assessments or government charges or levies not yet delinquent, or already delinquent, but the validity of which is being contested in good faith, (ix) any security interest arising in connection with legal proceedings being contested in good faith, including any judgment lien so long as execution thereof is being stayed, (x) landlords’ liens securing reimbursement obligations with respect to letters on fixtures located on premises leased by the Guarantor or any of credit related to trade payables and issued its Subsidiaries in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(hxi) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business[reserved], in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(ixii) any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements), in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); i) to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(hxi) is subject theretoinclusive.
Appears in 2 contracts
Samples: Indenture (DH Europe Finance II S.a.r.l.), Indenture (DH Europe Finance II S.a.r.l.)
Limitation on Secured Debt. (a) The Issuer Company will not, and will not (nor will the Issuer permit any of its Restricted Subsidiaries to) to create, assumeincur, issue, assume or guarantee any Secured Debt indebtedness for borrowed money secured by a Mortgage on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at the Company’s option, with any other indebtedness created, issued, assumed or guaranteed by the Company or any of its Restricted Subsidiaries then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Secured Debt. indebtedness for so long as such indebtedness is so secured.
(b) The foregoing restrictions in provisions of Section 4.06(a) hereof will not apply to indebtedness secured by any of the immediately preceding sentence shall not apply, however, to debt secured byfollowing:
(a1) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by the Company or any of its Restricted Subsidiaries after the date of this Indenture to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is indebtedness incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty, in each case, to the extent that the original indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether the Company or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionsame;
(c3) security interests Mortgages on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person existing at the time the Company or any Restricted Subsidiary merges or consolidates with such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, the Company or other disposition any Restricted Subsidiary acquires all or substantially all of the Properties properties of a Person as an entirety or substantially as an entirety such Person;
(4) Mortgages to the Issuer or a secure indebtedness of any Restricted Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements Company to the acquired PropertyCompany or another Restricted Subsidiary;
(e5) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer Mortgages in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests governmental bodies to secure Indebtedness of the pollution control partial, progress, advance or industrial revenue type) in order other payments pursuant to permit the Issuer any contract or any Subsidiary of the Issuer to perform a contract statute or to secure Indebtedness indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or indebtedness subject to such Mortgages, or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(f6) security interests on any Property or assets Mortgages to secure indebtedness, together with all other indebtedness incurred under this clause (6) not to exceed, at the time of incurrence and after application of the Issuer or any Subsidiary of the Issuer proceeds therefrom, an aggregate amount equal to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer$2.75 billion;
(g7) liens securing reimbursement obligations with respect to letters extensions, renewals or replacements of credit related to trade payables and issued in any Mortgage existing on the ordinary course date of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer this Indenture or any Mortgage referred to above; provided that the principal amount of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any indebtedness secured thereby may not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, premiums, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement will be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of capital stock or replacementsindebtedness that was subject to the Mortgage so extended, renewed or replaced;
(8) Mortgages on accounts receivables and related assets of the Company and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and
(9) Permitted Liens.
(c) Notwithstanding the restrictions in whole Section 4.06(a), the Company and any of its Restricted Subsidiaries may create, incur, issue, assume or in partguarantee indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a) or (b), if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any security interest referred indebtedness that is concurrently being retired, the aggregate amount of all such indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any indebtedness secured by Mortgages described in clauses (a)-(h1) through (9) of Section 4.06(b); to ) plus the extent that the principal aggregate amount thereof is not increased (without duplication) of (x) all Non-Guarantor Subsidiary Debt (other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing Non-Guarantor Subsidiary Debt described in clauses (a)-(h1) through (7) of Section 4.07(b)) and (y) all Attributable Debt of the Company and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that are permitted under clauses (1) and (2) of Section 4.08(a)) does not exceed 15% of the Consolidated Net Tangible Assets of the Company as of the date on which any such indebtedness is subject theretoincurred.
Appears in 2 contracts
Samples: Indenture (Huntsman International LLC), Indenture (Huntsman CORP)
Limitation on Secured Debt. The Issuer (a) Venator will not, and will not (nor will the Issuer permit any of its Restricted Subsidiaries to) to create, assumeincur, issue, assume or guarantee any Secured Debt indebtedness for borrowed money secured by a Mortgage on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at Venator’s option, with any other indebtedness created, issued, assumed or guaranteed by Venator or any of its Restricted Subsidiaries then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at Venator’s option, prior to) such Secured Debt. indebtedness for so long as such indebtedness is so secured.
(b) The foregoing restrictions in provisions of Section 4.06(a) hereof will not apply to indebtedness secured by any of the immediately preceding sentence shall not apply, however, to debt secured byfollowing:
(a1) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by Venator or any of its Restricted Subsidiaries after the date of this Indenture to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is indebtedness incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty, in each case, to the extent that the original indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether Venator or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionsame;
(c3) security interests Mortgages on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person existing at the time Venator or any Restricted Subsidiary merges or consolidates with such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, Venator or other disposition any Restricted Subsidiary acquires all or substantially all of the Properties properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired PropertyPerson;
(e4) security interests on Property Mortgages to secure indebtedness of the Issuer or Property of a any Restricted Subsidiary of the Issuer Venator to Venator or another Restricted Subsidiary;
(5) Mortgages in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests governmental bodies to secure Indebtedness of the pollution control partial, progress, advance or industrial revenue type) in order other payments pursuant to permit the Issuer any contract or any Subsidiary of the Issuer to perform a contract statute or to secure Indebtedness indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or indebtedness subject to such Mortgages or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(f6) security interests on any Property or assets Mortgages to secure indebtedness, together with all other indebtedness incurred under this clause (6) not to exceed, at the time of incurrence and after application of the Issuer or proceeds therefrom, an aggregate amount not to exceed the greater of (i) $1,100.0 million (including any Subsidiary of the Issuer refinancing indebtedness incurred pursuant to secure Indebtedness owing by it clause (7) below) and (ii) an amount that, after giving pro forma effect to the Issuer or any Subsidiary incurrence of such indebtedness, would cause the IssuerTotal Net Secured Leverage Ratio to exceed 2.50 to 1.00;
(g7) liens extensions, renewals or replacements of any Mortgage existing on, or contractually obligated to be granted within a period of time following, the Completion Date (other than mortgages securing reimbursement obligations with respect to letters of credit related to trade payables and issued in indebtedness under the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and ABL Credit Facility or the products and proceeds thereof;
(hSenior Credit Facility) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any Mortgage referred to above; provided that the principal amount of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any indebtedness secured thereby may not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, premiums, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement will be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of Capital Stock or replacementsindebtedness that was subject to the Mortgage so extended, renewed or replaced;
(8) Mortgages on accounts receivables and related assets of Venator and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and
(9) Permitted Liens.
(c) Notwithstanding the restrictions in whole Section 4.06(a), Venator and any of its Restricted Subsidiaries may create, incur, issue, assume or in partguarantee indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a) or (b), if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any security interest referred indebtedness that is concurrently being retired, the aggregate amount of all such indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any indebtedness secured by Mortgages described in clauses (a)-(h1) through (9) of Section 4.06(b); to ) plus the extent that the principal aggregate amount thereof is not increased (without duplication) of (x) all Non-Guarantor Subsidiary Debt (as defined below) (other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing Non-Guarantor Subsidiary Debt described in clauses (a)-(h1) through (7) of Section 4.07(b)) and (y) all Attributable Debt of Venator and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that are permitted under clauses (1) and (2) of Section 4.08(a)) does not exceed 15% of the Consolidated Net Tangible Assets of Venator as of the date on which any such indebtedness is subject theretoincurred.
Appears in 2 contracts
Samples: Indenture (Huntsman International LLC), Indenture (Venator Materials PLC)
Limitation on Secured Debt. The Issuer Broadcom Parent will not (nor will the Issuer Broadcom Parent permit any of its Subsidiaries toSubsidiaries) create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
(a) purchase money mortgages created to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer Broadcom Parent or a Subsidiary of the Issuer Broadcom Parent prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer Broadcom Parent or a Subsidiary of the IssuerBroadcom Parent, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer Broadcom Parent or a Subsidiary of the Issuer Broadcom Parent or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer Broadcom Parent or a Subsidiary of the IssuerBroadcom Parent; provided that no such security interests shall extend to any other Principal Property of the Issuer Broadcom Parent or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer Broadcom Parent or Property of a Subsidiary of the Issuer Broadcom Parent in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Broadcom Parent or any Subsidiary of the Issuer Broadcom Parent to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f) security interests on any Property or assets of the Issuer Broadcom Parent or any Subsidiary of the Issuer Broadcom Parent to secure Indebtedness owing by it to the Issuer Broadcom Parent or any Subsidiary of the IssuerBroadcom Parent;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer Broadcom Parent or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.
Appears in 2 contracts
Samples: Indenture (Broadcom Cayman L.P.), Indenture (Broadcom LTD)
Limitation on Secured Debt. The Issuer (a) So long as the Offered Notes shall remain Outstanding, the Company will not (nor will the Issuer permit at any of its Subsidiaries to) time create, assumeassume or guarantee, and will not cause or permit a Restricted Subsidiary to create, assume or guarantee any Secured Debt without making effective provision for securing (and the Company covenants that in such case it will make or cause to be made effective provision) whereby the Offered Notes then Outstanding shall be secured by such Security Interest equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence any and all other obligations and indebtedness which shall not applybe so secured; provided, however, that the foregoing covenants shall not be applicable to debt secured bythe following:
(a) purchase money mortgages created any Security Interest on any property hereafter acquired or constructed by the Company or a Restricted Subsidiary (including any improvement on an existing property) to secure payment or provide for the acquisitionpayment of all or any part of the purchase price or construction cost of such property, construction or improvement of any Property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Restricted Subsidiary of the Issuer prior to, at the time of, or within 18 months 365 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price thereof or construction or improvements thereon; or (b) any Security Interest upon property existing at the time of acquisition thereof, whether or not assumed by the Company or such Restricted Subsidiary; or (c) any Security Interest existing on the property or on the outstanding shares of capital stock or other equity interests or indebtedness of a Person at the time such Person or an Affiliate of such Person shall become a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for any such transaction); or (d) a Security Interest on property or shares of capital stock or other equity interests or indebtedness of a Person existing at the time such Person or an Affiliate of such Person is merged into or consolidated or amalgamated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for any such merger, consolidation, amalgamation, lease or other acquisition), provided, however, that no such Security Interest shall extend to any other Principal Property of the Company or such Restricted Subsidiary prior to such acquisition or to the other Principal Property thereafter acquired other than additions or improvements to such acquired property;
(2) Security Interests in property of the Company or a Restricted Subsidiary in favour of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favour of Canada or any province thereof or any other country, or any department, agency or instrumentality or political subdivision of Canada or any province thereof or such other country (including, without limitation, Security Interests to secure indebtedness of the pollution control or industrial revenue bond type), in order to permit the Company or a Restricted Subsidiary to perform any contract or subcontract made by it with or at the request of any of the foregoing, or to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such Security Interests;
(3) any Security Interest existing at the date of original issuance of the Offered Notes;
(4) any Security Interest on any property or assets of any Restricted Subsidiary to secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(5) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(6) any Security Interest arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business business, or the exercise of any privilege, franchise or license;
(f7) security interests on any Property Security Interests for taxes, assessments or assets governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or government charges or levies already delinquent but the validity of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerwhich is being contested in good faith;
(g8) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed;
(9) Landlords’ liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued on fixtures located on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i10) any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest referred Security Interest permitted by subsection (a) of this Section 3.01.
(b) Notwithstanding the provisions of subsection (a) of this Section 3.01, the Company and any one or more Restricted Subsidiaries may, in addition, without securing the Offered Notes, issue, assume or guarantee Secured Debt that would otherwise be subject to in the foregoing clauses (a)-(h); restrictions in an aggregate amount which, together with all other Secured Debt of the Company and its Restricted Subsidiaries that would otherwise be subject to the extent foregoing restrictions (but not including Secured Debt permitted to be secured under subsection (a) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 3.02) in existence at such time (not including Sale and Leaseback Transactions the proceeds of which have been or will be applied in accordance with clause (b) of Section 3.02), does not exceed 10% of Consolidated Shareholders’ Equity, determined as of a date not more than 90 days prior thereto.
(c) In the event that the principal amount thereof Company shall hereafter secure the Offered Notes equally and ratably with any other obligation or indebtedness pursuant to the provisions of this Section 3.01, the Trustee is not increased other than by transaction costs hereby authorized to enter into an indenture or agreement supplemental to the Indenture and premiumsthis Supplemental Indenture and to take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the Holders of the Offered Notes so secured, equally and no additional Principal Property ratably with such other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoobligation or indebtedness.
Appears in 2 contracts
Samples: Third Supplemental Indenture (Magna International Inc), Second Supplemental Indenture (Magna International Inc)
Limitation on Secured Debt. The Issuer will not (nor will the Issuer permit any of its Subsidiaries to) create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
(a) purchase money mortgages created to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;; Table of Contents
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.
Appears in 1 contract
Samples: Indenture (Broadcom Inc.)
Limitation on Secured Debt. The Issuer will not, and will not (nor will the Issuer permit any of its Subsidiaries Subsidiary to) , create, assume, or guarantee any Secured Debt without making effective provision for securing securities by the Notes equally and ratably secured with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured to by:
(a1) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Propertyproperty;
(b2) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to herein as "security interests") on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionSubsidiary;
(c3) security interests on Property property or shares of capital stock or indebtedness of any Person corporation or firm existing at the time such Person corporation or firm becomes a Subsidiary;
(d4) security interests on Property in property or shares of capital stock or indebtedness of a Person corporation existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; Subsidiary, provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Propertyproperty;
(e5) security interests on Property property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f6) security interests on any Property property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness indebtedness owing by it to the Issuer or any Subsidiary of the Issuerto another Subsidiary;
(g7) any mechanics', materialmen's, carriers' or other similar lien arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not yet due or which are being contested in good faith;
(8) any security interest for taxes, assessments or government charges or levies not yet delinquent, or already delinquent, but the validity of which is being contested in good faith;
(9) any security interest arising in connection with legal proceedings being contested in good faith, including any judgment lien so long as execution thereof is being stayed;
(10) landlords' liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued on fixtures located on premises leased by the Issuer or a Subsidiary in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i11) any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements), in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); 1) to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h10) is subject theretoinclusive.
Appears in 1 contract
Limitation on Secured Debt. (a) The Issuer Company will not, and will not (nor will the Issuer permit any of its Restricted Subsidiaries to) to create, assumeincur, issue, assume or guarantee any Secured Debt Indebtedness for borrowed money secured by a Mortgage, on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at the Company’s option, with any other Indebtedness created, issued, assumed or guaranteed by the Company or any of its Restricted Subsidiaries then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Secured Debt. Indebtedness for so long as, and to the extent, such indebtedness is so secured (and any Mortgage created for the benefit of the Holders of the Notes and any other Securities of any series issued pursuant to the Base Indenture and having the benefit of this covenant shall provide by its terms that such Mortgage will be automatically released and discharged upon the release and discharge of the Mortgage securing such other Indebtedness).
(b) The foregoing restrictions in provisions of Section 4.06(a) hereof will not apply to Indebtedness secured by any of the immediately preceding sentence shall not apply, however, to debt secured byfollowing:
(ai) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by the Company or any of its Restricted Subsidiaries after the Issue Date to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty, in each case, to the extent that the original Indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(bii) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether the Company or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuersame, provided such security interests are which Mortgages were not created incurred in anticipation or in furtherance of such acquisition;
(ciii) security interests Mortgages on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person existing at the time the Company or any Restricted Subsidiary merges or consolidates with such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, the Company or other disposition any Restricted Subsidiary acquires all or substantially all of the Properties properties of a Person as an entirety such Person, which Mortgages were not incurred in anticipation of such merger, consolidation or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Propertyacquisition;
(eiv) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests Mortgages to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Restricted Subsidiary of the Issuer Company to perform a the Company or another Restricted Subsidiary;
(v) Mortgages in favor of governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure Indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or Indebtedness subject to such Mortgages, or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(fvi) security interests extensions, renewals or replacements of any Mortgage existing on any Property or assets of the Issuer Issue Date or any Subsidiary of the Issuer Mortgage referred to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
clauses (i) any through (v) above; provided that the principal amount of Indebtedness secured thereby may not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement will be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of capital stock or replacementsIndebtedness that was subject to the Mortgage so extended, renewed or replaced;
(vii) Mortgages on accounts receivable and related assets of the Company and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and
(viii) Permitted Liens.
(c) Notwithstanding the restrictions in whole Section 4.06(a), the Company and any of its Restricted Subsidiaries may create, incur, issue, assume or in partguarantee Indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a) or (b), if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any security interest referred Indebtedness that is concurrently being retired, the aggregate amount of all such Indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any Indebtedness secured by Mortgages described in clauses (a)-(hi) through (viii) of Section 4.06(b); to ) plus the extent aggregate amount (without duplication) of all Attributable Debt of the Company and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property are permitted to be so secured under the foregoing clauses (a)-(ha) and (b) of Section 4.07) does not exceed 20% of the Consolidated Net Tangible Assets of the Company as of the date on which any such Indebtedness is subject theretoincurred.
Appears in 1 contract
Samples: Second Supplemental Indenture (Huntsman International LLC)
Limitation on Secured Debt. The Issuer Borrower will not (create, assume, incur or guarantee, nor will the Issuer it permit any of its Subsidiaries to) to create, assume, incur or guarantee guarantee, any Secured Debt without making effective provision for securing Debt, in each case, unless prior to or at the Notes same time, the Borrower Obligations are equally and ratably secured with (or, at the Borrower’s option, senior to) such Secured DebtDebt until such time as such Secured Debt is no longer secured by such Lien. The foregoing restrictions in the immediately preceding sentence shall restriction does not apply, however, apply to debt Secured Debt that is secured by:
(a1) purchase money mortgages created Liens on property or assets of or securing Indebtedness of any Person existing at the time such Person becomes a Subsidiary (including by way of merger or consolidation with the Borrower or any Subsidiary), provided that (i) such Lien was not incurred in anticipation of such Person becoming a Subsidiary, (ii) such Lien shall not apply to any other property or Indebtedness of the Borrower or any Subsidiary other than additions, accessions, parts, attachments or improvements thereon or proceeds thereof and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, subject, in the case of clause (iii), to extensions, renewals or replacements in accordance with clause (14) below;
(2) Liens on property or assets existing at the time of acquisition by the Borrower or any Subsidiary of such property or assets (which may include property or assets previously leased by the Borrower or any Subsidiary and leasehold interests on such property or assets, provided that the lease terminates prior to or upon such acquisition) or Liens on property or assets to secure the payment for of all or any part of the acquisitionpurchase price of such property or assets, construction or improvement of any Property including, but not limited to, Liens on property or assets to secure any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 12 months after after, the later latest of the acquisitionacquisition of such property or assets or the completion of construction, the completion of construction (including any improvements on an existing property) or the commencement of substantial commercial operations operation of such Property, which Indebtedness is incurred property or assets for the purpose of financing all or any part of the purchase price of the property or assets and related costs and expenses, or such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance making of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuerimprovements; provided that no (i) the Indebtedness secured by such Liens shall not exceed 100% of the cost of acquiring, constructing or improving such property or assets and (ii) such security interests shall extend not apply to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f) security interests on any Property property or assets of the Issuer Borrower or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer other than additions, accessions, parts, attachments or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued improvements thereon or proceeds thereof, subject in the ordinary course case of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
clause (i) any extension), renewal or replacement, or successive to extensions, renewals or replacements, replacements in whole or in part, of any security interest referred to in the foregoing clauses accordance with clause (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h14) is subject thereto.below;
Appears in 1 contract
Samples: Term Loan Credit Agreement (Kyndryl Holdings, Inc.)
Limitation on Secured Debt. The Issuer (a) So long as the Notes shall remain Outstanding, the Company will not (nor will the Issuer permit at any of its Subsidiaries to) time create, assumeassume or guarantee, and will not cause or permit a Restricted Subsidiary to create, assume or guarantee any Secured Debt without making effective provision for securing (and the Company covenants that in such case it will make or cause to be made effective provision) whereby the Notes then Outstanding shall be secured by such Security Interest equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence any and all other obligations and indebtedness which shall not applybe so secured; provided, however, that the foregoing covenants shall not be applicable to debt secured bythe following:
(a) purchase money mortgages created any Security Interest on any property hereafter acquired or constructed by the Company or a Restricted Subsidiary (including any improvement on an existing property) to secure payment or provide for the acquisitionpayment of all or any part of the purchase price or construction cost of such property, construction or improvement of any Property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Restricted Subsidiary of the Issuer prior to, at the time of, or within 18 months 365 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price thereof or construction or improvements thereon; or (b) any Security Interest upon property existing at the time of acquisition thereof, whether or not assumed by the Company or such Restricted Subsidiary; or (c) any Security Interest existing on the property or on the outstanding shares of capital stock or other equity interests or indebtedness of a Person at the time such Person or an Affiliate of such Person shall become a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for any such transaction); or (d) a Security Interest on property or shares of capital stock or other equity interests or indebtedness of a Person existing at the time such Person or an Affiliate of such Person is merged into or consolidated or amalgamated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for any such merger, consolidation, amalgamation, lease or other acquisition), provided, however, that no such Security Interest shall extend to any other Principal Property of the Company or such Restricted Subsidiary prior to such acquisition or to the other Principal Property thereafter acquired other than additions or improvements to such acquired property;
(2) Security Interests in property of the Company or a Restricted Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of Canada or any province thereof or any other country, or any department, agency or instrumentality or political subdivision of Canada or any province thereof or such other country (including, without limitation, Security Interests to secure indebtedness of the pollution control or industrial revenue bond type), in order to permit the Company or a Restricted Subsidiary to perform any contract or subcontract made by it with or at the request of any of the foregoing, or to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such Security Interests;
(3) any Security Interest existing at the date of original issuance of the Notes;
(4) any Security Interest on any property or assets of any Restricted Subsidiary to secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(5) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(6) any Security Interest arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business business, or the exercise of any privilege, franchise or license;
(f7) security interests on any Property Security Interests for taxes, assessments or assets governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or government charges or levies already delinquent but the validity of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerwhich is being contested in good faith;
(g8) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed;
(9) Landlords’ liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued on fixtures located on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i10) any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest referred Security Interest permitted by subsection (a) of this Section 3.01.
(b) Notwithstanding the provisions of subsection (a) of this Section 3.01, the Company and any one or more Restricted Subsidiaries may, in addition, without securing the Notes, issue, assume or guarantee Secured Debt that would otherwise be subject to in the foregoing clauses (a)-(h); restrictions in an aggregate amount which, together with all other Secured Debt of the Company and its Restricted Subsidiaries that would otherwise be subject to the extent foregoing restrictions (but not including Secured Debt permitted to be secured under subsection (a) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 3.02) in existence at such time (not including Sale and Leaseback Transactions the proceeds of which have been or will be applied in accordance with clause (b) of Section 3.02), does not exceed 10% of Consolidated Shareholders’ Equity, determined as of a date not more than 90 days prior thereto.
(c) In the event that the principal amount thereof Company shall hereafter secure the Notes equally and ratably with any other obligation or indebtedness pursuant to the provisions of this Section 3.01, the Trustee is not increased other than by transaction costs hereby authorized to enter into an indenture or agreement supplemental to the Indenture and premiumsthis Supplemental Indenture and to take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the Holders of the Notes so secured, equally and no additional Principal Property ratably with such other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoobligation or indebtedness.
Appears in 1 contract
Samples: Sixth Supplemental Indenture (Magna International Inc)
Limitation on Secured Debt. The Issuer Guarantor will not, and will not (nor will the Issuer permit any of its Subsidiaries to) , create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes Securities equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
by (ai) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Property;
property, (bii) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to herein as security interests) on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer Guarantor or a Subsidiary any of the Issuerits Subsidiaries, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(ciii) security interests on Property property or shares of capital stock or indebtedness of any Person corporation or firm existing at the time such Person corporation or firm becomes a Subsidiary;
, (div) security interests on Property in property or shares of capital stock or indebtedness of a Person corporation existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries or at the time of a sale, lease, or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer Guarantor or a Subsidiary any of the Issuer; its Subsidiaries, provided that no such security interests shall extend to any other Principal Property of the Issuer Guarantor or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
property, (ev) security interests on Property property of the Issuer Guarantor or Property any of a Subsidiary of the Issuer its Subsidiaries in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Guarantor or any Subsidiary of the Issuer its Subsidiaries to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.security
Appears in 1 contract
Samples: Indenture (Danaher Corp /De/)
Limitation on Secured Debt. The Issuer (a) So long as the Notes shall remain Outstanding, the Company will not (nor will the Issuer permit at any of its Subsidiaries to) time create, assumeassume or guarantee, and will not cause, suffer or permit a Restricted Subsidiary to create, assume or guarantee any Secured Debt without making effective provision for securing (and the Company covenants that in such case it will make or cause to be made effective provision) whereby the Notes then Outstanding subject to applicable priorities of payment shall be secured by such Security Interest equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence any and all other obligations and indebtedness which shall not applybe so secured; provided, however, that the foregoing covenants shall not be applicable to debt secured bythe following:
(a) purchase money mortgages created any Security Interest on any property hereafter acquired or constructed by the Company or a Restricted Subsidiary to secure payment or provide for the acquisitionpayment of all or any part of the purchase price or construction cost of such property, construction or improvement of any Property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Restricted Subsidiary of the Issuer prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property thereof or construction or improvements on such Property;
thereon; or (b) mortgages, pledges, liens, security interests or encumbrances (collectively referred the acquisition of property subject to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, Security Interest upon such property existing at the time of acquisition thereof, whether or not assumed by the Issuer Company or a Subsidiary of the Issuer, provided such security interests are not created in anticipation Restricted Subsidiary; or in furtherance of such acquisition;
(c) security interests any Security Interest existing on Property the property or on the outstanding shares of any Person capital stock or indebtedness of a corporation at the time such corporation shall become a Restricted Subsidiary; or (d) a Security Interest on property or shares of capital stock or indebtedness of a corporation existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer Company or a Restricted Subsidiary of the Issuer or at the time of a sale, lease, lease or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer Company or a Subsidiary of the Issuer; provided Restricted Subsidiary, provided, however, that no such security interests Security Interest shall extend to any other Principal Property of the Issuer Company or such Restricted Subsidiary prior to such acquisition or to the other Principal Property thereafter acquired other than additions or improvements to the such acquired Propertyproperty;
(e2) security interests on Property Security Interests in property of the Issuer Company or Property of a Restricted Subsidiary of the Issuer in favor of the United States of America or any state State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any department, agency, agency or instrumentality or political subdivision thereof (including, without limitation, security interests Security Interests to secure Indebtedness indebtedness of the pollution control or industrial revenue bond type) ), in order to permit the Issuer Company or a Restricted Subsidiary to perform any Subsidiary contract or subcontract made by it with or at the request of any of the Issuer to perform a contract foregoing, or to secure Indebtedness partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price for or the cost of constructing or improving the Property property subject to such Security Interests;
(3) Any Security Interest on any property or assets of any Restricted Subsidiary to secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(4) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(5) Any Security Interest arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business business, or the exercise of any privilege, franchise or license;
(f6) security interests on any Property Security Interests for taxes, assessments or assets governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or government charges or levies already delinquent but the validity of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerwhich is being contested in good faith;
(g7) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed;
(8) Landlords’ liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued on fixtures located on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i9) any Any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest referred Security Interest permitted by subsection (a) of this Section 5.01.
(b) Notwithstanding the provisions of subsection (a) of this Section 5.01, the Company and any one or more Restricted Subsidiaries may without securing the Notes issue, assume or guarantee Secured Debt which would otherwise be subject to in the foregoing clauses (a)-(h); restrictions in an aggregate amount which, together with all other Secured Debt of the Company and its Restricted Subsidiaries which would otherwise be subject to the extent foregoing restrictions (not including Secured Debt permitted to be secured under subsection (a) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 5.02) in existence at such time (not including Sale and Leaseback Transactions the proceeds of which have been or will be applied in accordance with Section 5.02(b)), does not exceed 10% of Consolidated Shareholders’ Equity, determined as of a date not more than 90 days prior thereto.
(c) In the event that the principal amount thereof Company shall hereafter secure the Notes equally and ratably with any other obligation or indebtedness pursuant to the provisions of this Section 5.01, the Trustee is not increased other than by transaction costs hereby authorized to enter into an indenture or agreement supplemental hereto and premiumsto take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the Holders of the Securities so secured, equally and no additional Principal Property ratably with such other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoobligation or indebtedness.
Appears in 1 contract
Limitation on Secured Debt. (a) The Issuer will Company shall not, and shall not (nor will the Issuer permit any of its Restricted Subsidiaries to) , create, assumeincur, issue, assume or guarantee any Secured Debt Indebtedness secured by a Mortgage on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at the Company’s option, with any other Indebtedness created, issued, assumed or guaranteed by the Company or any of its Restricted Subsidiaries then existing or thereafter created) shall be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Secured Debt. Indebtedness for so long as such Indebtedness is so secured.
(b) The foregoing restrictions in the immediately preceding sentence provisions of Section 4.06(a) hereof shall not apply, however, apply to debt Indebtedness secured byby any of the following:
(a1) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by the Company or any of its Restricted Subsidiaries after the date of this Indenture to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty (including, in each case, any reasonably related fees or expenses incurred in connection therewith), in each case, to the extent that the original Indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether the Company or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionsame;
(c3) security interests Mortgages on Property property of any a Person existing (i) at the time the Company or any Restricted Subsidiary merges or consolidates with such Person, (ii) at the time the Company or any Restricted Subsidiary acquires all or substantially all of the properties of such Person or (iii) at the time such Person becomes became a Restricted Subsidiary;
(d4) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests Mortgages to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Restricted Subsidiary of the Issuer Company to perform a the Company or another Restricted Subsidiary;
(5) Mortgages in favor of governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure Indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or Indebtedness subject to such Mortgages, or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(f6) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer Mortgages to secure Indebtedness owing by it to the Issuer or any Subsidiary of the IssuerCredit Facilities;
(g) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) Mortgages existing on the date of this Indenture (other than Mortgages securing the Credit Facilities or Indebtedness of any Foreign Subsidiary or Foreign Holding Company) and (ii) extensions, renewals or replacements of any Mortgage existing on the date of this Indenture (other than Mortgages securing the Credit Facilities or Indebtedness of any Foreign Subsidiary or Foreign Holding Company) or any Mortgage described in clauses (1) through (6) of this Section 4.06(b) above; provided that the principal amount of Indebtedness secured thereby may not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, premiums, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement shall be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of capital stock or replacementsIndebtedness that was subject to the Mortgage so extended, renewed or replaced;
(8) Mortgages on Receivables Assets in whole or in part, connection with a Qualified Receivables Transaction;
(9) Permitted Liens; and
(10) Mortgages on property of any security interest referred Foreign Subsidiary or Foreign Holding Company securing Indebtedness of any Foreign Subsidiary or Foreign Holding Company.
(c) Notwithstanding the restrictions in this Section 4.06, the Company and any of its Restricted Subsidiaries may create, incur, issue, assume or guarantee Indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a), if at the time of such issuance, creation, incurrence, assumption or guarantee, after giving effect thereto and to the retirement of any Indebtedness that is concurrently being retired, the aggregate amount of all such Indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any Indebtedness secured by Mortgages described in clauses (a)-(h1) through (10) of Section 4.06(b); to ) plus the extent that the principal aggregate amount thereof is not increased (without duplication) of (x) all Non-Guarantor Subsidiary Debt (other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing Non-Guarantor Subsidiary Debt described in clauses (a)-(h1) through (7) of Section 4.07(b)) and (y) all Attributable Debt of the Company and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that are permitted under clauses (1) and (2) of Section 4.08) does not exceed 15% of the Consolidated Net Tangible Assets of the Company as of the date on which any such Indebtedness is subject theretoincurred.
Appears in 1 contract
Limitation on Secured Debt. (a) The Issuer will Company shall not (nor will shall the Issuer Company permit any of its Domestic Subsidiaries to) create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence This covenant shall not apply, however, apply to debt indebtedness for borrowed money secured by:
(a1) purchase money mortgages Security Interests created to secure payment for the acquisition, construction construction, repair or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Subsidiary of the Issuer Company prior to, at the time of, or within 18 24 months after the later of the acquisition, the completion of construction (including any repairs or improvements on an existing property) or the commencement of commercial operations of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction construction, repair or improvements on such Propertyproperty;
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Security Interests on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, thereof (whether or not assumed by the Issuer Company or a Subsidiary of the IssuerCompany) or at the time it becomes a Principal Property, provided such security interests Security Interests are not created in anticipation or in furtherance of such acquisition;
(c3) security interests Security Interests on Property property of any Person existing at the time such Person becomes a Subsidiary or Domestic Subsidiary;
(d4) security interests Security Interests on Property property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer Company or a Subsidiary of the Issuer Company or at the time of a sale, lease, or other disposition of the Properties properties of a Person as an entirety or substantially as an entirety to the Issuer Company or a Subsidiary of the IssuerCompany; provided that no such security interests Security Interests shall extend to any other property that is a Principal Property of the Issuer Company or such Subsidiary prior to such acquisition or to other property that is a Principal Property thereafter acquired other than additions or improvements to the acquired Propertyproperty;
(e5) security interests Security Interests on Property of the Issuer Company’s property or Property property of a Subsidiary of the Issuer Company in favor of the United States of America or any state thereofstate, territory or possession thereof (or the District of Columbia), or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests Security Interests to secure Indebtedness indebtedness for borrowed money of the pollution control or industrial revenue type) ), in order to permit the Issuer Company or any Subsidiary of the Issuer Company to perform a contract or to secure Indebtedness any indebtedness incurred for the purpose of financing all or any part of the purchase price for of the cost of constructing or improving the Property property subject to such security interests or Security Interests which is are required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(f6) security interests Security Interests on any Property of the Company’s property or assets of the Issuer or any Subsidiary of the Issuer Company to secure Indebtedness indebtedness for borrowed money owing by it to the Issuer Company or any Subsidiary of the IssuerCompany;
(g7) liens Security Interests securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in 8) Security Interests existing on the ordinary course issue date of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currenciesNotes; or
(i9) any extension, renewal renewal, refinancing or replacement, or successive extensions, renewals renewals, refinancings or replacements, in whole or in part, of any security interest Security Interest referred to in the foregoing clauses (a)-(h1)-(8); to the extent that the principal amount thereof of the indebtedness for borrowed money secured thereby is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h1)-(8) is subject thereto. For the purposes of determining compliance with this covenant, in the event that any Secured Debt meets the criteria of more than one of the types of Secured Debt described above, the Company, in its sole discretion, shall classify such Secured Debt and only be required to include the amount and type of such Secured Debt in one of clauses (1) through (9) above or pursuant to clause (b) below, and Secured Debt may be divided and classified at the time of incurrence into more than one of the types of Secured Debt described above or pursuant to clause (b) below.
Appears in 1 contract
Limitation on Secured Debt. The Issuer Company will not, and will not (nor will the Issuer permit any of its Subsidiaries Subsidiary to) , create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes Securities equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt indebtedness secured by:
(ai) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Propertyproperty;
(bii) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to as security interests) on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer Company or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisitionSubsidiary;
(ciii) security interests on Property property or shares of Capital Stock or indebtedness of any Person corporation or firm existing at the time such Person corporation or firm becomes a Subsidiary;
(div) security interests on Property in property or shares of Capital Stock or indebtedness of a Person corporation existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer Company or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer Company or a Subsidiary of the Issuer; Subsidiary, provided that no such security interests shall extend to any other Principal Property of the Issuer Company or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Propertyproperty;
(ev) security interests on Property of the Issuer Company’s property or Property property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Company or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
(fvi) security interests on any Property property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness indebtedness owing by it to the Issuer Company or any Subsidiary of the Issuerto another Subsidiary;
(gvii) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property property relating to such letters of credit and the products and proceeds thereof;
(hviii) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness indebtedness under any interest swap obligations and currency agreements and forward contractscontract, optionsoption, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer Company or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(iix) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); i) to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(hix) is subject theretoinclusive.
Appears in 1 contract
Samples: Indenture (Fortive Corp)
Limitation on Secured Debt. The Issuer Guarantor will not, and will not (nor will the Issuer permit any of its Subsidiaries to) , create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes Securities equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
by (ai) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Property;
property, (bii) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to herein as security interests) on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer Guarantor or a Subsidiary any of the Issuerits Subsidiaries, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(ciii) security interests on Property property or shares of capital stock or indebtedness of any Person entity existing at the time such Person entity becomes a Subsidiary;
, (div) security interests on Property in property or shares of a Person capital stock or indebtedness of an entity existing at the time such Person entity is merged or amalgamated into or otherwise consolidated with the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries or at the time of a sale, lease, or other disposition of the Properties properties of a Person an entity as an entirety or substantially as an entirety to the Issuer Guarantor or a Subsidiary any of the Issuer; its Subsidiaries, provided that no such security interests shall extend to any other Principal Property of the Issuer Guarantor or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
property, (ev) security interests on Property of the Issuer Guarantor’s property or Property property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Guarantor or any Subsidiary of the Issuer its Subsidiaries to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
, (fvi) security interests on any Property property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness indebtedness owing by it to the Issuer Guarantor or any to another Subsidiary of the Issuer;
Guarantor, (gvii) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.which
Appears in 1 contract
Limitation on Secured Debt. The Issuer (a) So long as the Debt Securities shall remain Outstanding, the Company will not (nor will the Issuer permit at any of its Subsidiaries to) time create, assumeassume or guarantee, and will not cause, suffer or permit a Restricted Subsidiary to create, assume or guarantee any Secured Debt without making effective provision for securing (and the Notes Company covenants that in such case it will make or cause to be made effective provision) whereby the Debt Securities then Outstanding subject to applicable priorities of payment shall be secured by such Security Interest equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence any and all other obligations and indebtedness which shall not applybe so secured; provided, however, that the foregoing covenants shall not be applicable to debt secured bythe following:
(ai) purchase money mortgages created any Security Interest on any property hereafter acquired or constructed by the Company or a Restricted Subsidiary to secure payment or provide for the acquisitionpayment of all or any part of the purchase price or construction cost of such property, construction or improvement of any Property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Restricted Subsidiary of the Issuer prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property thereof or construction or improvements on thereon (or within six months thereafter pursuant to a commitment for such Property;
financing arranged with a lender or investor within such 180-day period); or (bii) mortgages, pledges, liens, security interests or encumbrances (collectively referred the acquisition of property subject to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, Security Interest upon such property existing at the time of acquisition thereof, whether or not assumed by the Issuer Company or such Restricted Subsidiary; or (iii) any Security Interest existing on the property or on the outstanding shares of capital stock or indebtedness of a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes shall become a Restricted Subsidiary;
; or (div) security interests a Security Interest on Property property or shares of capital stock or indebtedness of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer Company or a Restricted Subsidiary of the Issuer or at the time of a sale, lease, lease or other disposition of the Properties properties of a Person as an entirety or substantially as an entirety to the Issuer Company or a Subsidiary of the Issuer; provided Restricted Subsidiary, provided, however, that no such security interests Security Interest shall extend to any other Principal Property of owned by the Issuer Company or such Restricted Subsidiary prior to such acquisition or to other another Principal Property thereafter acquired by the Company or such Restricted Subsidiary other than additions or improvements to the such acquired Propertyproperty;
(e2) security interests on Property Security Interests in property of the Issuer Company or Property of a Restricted Subsidiary of the Issuer in favor of the United States of America or any state State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any department, agency, agency or instrumentality or political subdivision thereof (including, without limitation, security interests Security Interests to secure Indebtedness indebtedness of the pollution control or industrial revenue bond type) ), in order to permit the Issuer Company or a Restricted Subsidiary to perform any Subsidiary contract or subcontract made by it with or at the request of any of the Issuer to perform a contract foregoing, or to secure Indebtedness partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price for or the cost of constructing or improving the Property property subject to such Security Interests;
(3) Any Security Interest on any property or assets of any Restricted Subsidiary to secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(4) Mechanics', materialmen's, carriers', land- lord's, warehousemen's or other like liens imposed by law or otherwise arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(5) Any Security Interest arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business business, or the exercise of any privilege, franchise or license;
(f6) security interests on any Property Security Interests for taxes, assessments or assets governmental charges or levies not yet delinquent, or Security Interests for taxes, assessments or government charges or levies already delinquent but the validity of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerwhich is being contested in good faith;
(g7) liens Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed;
(8) Security Interests arising out of pledges or deposits under worker's compensation laws, unemployment insurance, old age pensions, or other social security or retirement benefits, or similar legislation or securing reimbursement obligations the performance of bids, tenders or contracts (other than for money borrowed) or to secure indemnity, performance or similar bonds;
(9) Easements, building restrictions, rights-of- way and other encumbrances or charges against property as are of a nature generally existing with respect to letters properties of credit related to trade payables a similar character and issued which do not in any material way affect the value of the same or interfere with the use thereof in the ordinary course business of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereofCompany or any Restricted Subsidiary;
(h10) liens encumbering customary initial deposits and margin deposits and other liens in Security Interests to secure tax-exempt private activity bonds under the ordinary course Internal Revenue Code of business1986, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect as amended;
(11) Security Interests existing on the Issuer or any of its Subsidiaries from fluctuations in interest rates or currenciesdate hereof; or
(i12) any Any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest referred Security Interest permitted by subsection (a) of this Section 5.05.
(b) Notwithstanding the provisions of subsection (a) of this Section 5.05, the Company and any one or more Restricted Subsidiaries may without securing the Debt Securities issue, assume or guarantee Secured Debt which would otherwise be subject to in the foregoing clauses (a)-(h); restrictions in an aggregate amount which, together with all other Secured Debt of the Company and its Restricted Subsidiaries which would otherwise be subject to the extent foregoing restrictions (not including Secured Debt permitted to be secured under subsection (a) above) and the aggregate "value" (as defined in Section 5.06) of the Sale and Leaseback Transactions (as defined in Section 5.06) in existence at such time (not including Sale and Leaseback Transactions the proceeds of which have been or will be applied in accordance with Section 5.06(b)), does not exceed 10% of Consolidated Net Tangible Assets.
(c) In the event that the principal amount thereof Company shall hereafter secure the Debt Securities of each series equally and ratably with any other obligation or indebtedness pursuant to the provisions of this Section 5.05, the Trustee is not increased other than by transaction costs hereby authorized to enter into an indenture or agreement supplemental hereto and premiumsto take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the Holders of the Securities so secured, equally and no additional Principal Property ratably with such other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoobligation or indebtedness.
Appears in 1 contract
Limitation on Secured Debt. The Issuer Guarantor will not, and will not (nor will the Issuer permit any of its Subsidiaries to) , create, assume, or guarantee any Secured Debt without making effective provision for securing the Notes Securities equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not apply, however, to debt secured by:
by (ai) purchase money mortgages created to secure payment for the acquisition, acquisition or construction or improvement of any Property property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries prior to, at the time of, or within 18 months 180 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing all or any part of the purchase price of such Property property or construction or improvements on such Property;
property, (bii) mortgages, pledges, liens, security interests interest or encumbrances (collectively referred to herein as security interests) on Propertyproperty, or any conditional sales agreement or any title retention with respect to Propertyproperty, existing at the time of acquisition thereof, whether or not assumed by the Issuer Guarantor or a Subsidiary any of the Issuerits Subsidiaries, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(ciii) security interests on Property property or shares of capital stock or indebtedness of any Person corporation or firm existing at the time such Person corporation or firm becomes a Subsidiary;
, (div) security interests on Property in property or shares of capital stock or indebtedness of a Person corporation existing at the time such Person corporation is merged or amalgamated into or otherwise consolidated with the Issuer Guarantor or a Subsidiary any of the Issuer its Subsidiaries or at the time of a sale, lease, or other disposition of the Properties properties of a Person corporation or firm as an entirety or substantially as an entirety to the Issuer Guarantor or a Subsidiary any of the Issuer; its Subsidiaries, provided that no such security interests shall extend to any other Principal Property of the Issuer Guarantor or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
property, (ev) security interests on Property property of the Issuer Guarantor or Property any of a Subsidiary of the Issuer its Subsidiaries in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Guarantor or any Subsidiary of the Issuer its Subsidiaries to perform a contract or to secure Indebtedness indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or license;
, (fvi) security interests on any Property property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness indebtedness owing by it to the Issuer Guarantor or any to another Subsidiary of the Issuer;
Guarantor, (gvii) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued any mechanics’, materialmen’s, carriers’ or other similar lien arising in the ordinary course of business, which liens encumber documents and other Property relating to such letters business (including construction of credit and the products and proceeds thereof;
(hfacilities) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject thereto.in
Appears in 1 contract
Samples: Indenture (DH Europe Finance S.A.)
Limitation on Secured Debt. (a) The Issuer Company will not, and will not (nor will the Issuer permit any of its Restricted Subsidiaries to) to create, assumeincur, issue, assume or guarantee any Secured Debt Indebtedness for borrowed money secured by a Mortgage, on or upon any Principal Property, whether owned at the date of this Indenture or acquired after the date of this Indenture, without making effective provision for securing ensuring that the Notes (together, at the Company’s option, with any other Indebtedness created, issued, assumed or guaranteed by the Company or any of its Restricted Subsidiaries then existing or thereafter created) will be secured by such Mortgage equally and ratably with (or, at the Company’s option, prior to) such Secured Debt. Indebtedness for so long as, and to the extent, such indebtedness is so secured (and any Mortgage created for the benefit of the Holders of the Notes and any other Securities of any series issued pursuant to the Base Indenture and having the benefit of this covenant shall provide by its terms that such Mortgage will be automatically released and discharged upon the release and discharge of the Mortgage securing such other Indebtedness).
(b) The foregoing restrictions in provisions of Section 4.06(a) hereof will not apply to Indebtedness secured by any of the immediately preceding sentence shall not apply, however, to debt secured byfollowing:
(ai) purchase money mortgages created Mortgages on any property acquired, leased, constructed or improved by the Company or any of its Restricted Subsidiaries after the Issue Date to secure payment for the acquisition, construction or improvement of any Property including, but not limited to, any Indebtedness incurred by the Issuer or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price of such Property property or of the cost of any construction or improvements on such Propertyproperty, in each case, to the extent that the original Indebtedness is incurred prior to or within one year after the applicable acquisition, lease, completion of construction or beginning of commercial operation of such property, as the case may be;
(bii) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) Mortgages on Property, or any conditional sales agreement or any title retention with respect to Property, property existing at the time of acquisition thereof, whether the Company or not assumed by the Issuer or a any Restricted Subsidiary acquires any of the Issuersame, provided such security interests are which Mortgages were not created incurred in anticipation or in furtherance of such acquisition;
(ciii) security interests Mortgages on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property property of a Person existing at the time the Company or any Restricted Subsidiary merges or consolidates with such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, the Company or other disposition any Restricted Subsidiary acquires all or substantially all of the Properties properties of a Person as an entirety such Person, which Mortgages were not incurred in anticipation of such merger, consolidation or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Propertyacquisition;
(eiv) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests Mortgages to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Restricted Subsidiary of the Issuer Company to perform a the Company or another Restricted Subsidiary;
(v) Mortgages in favor of governmental bodies to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure Indebtedness incurred for the purpose of financing or guaranteed to finance or refinance all or any part of the purchase price for of the property, shares of capital stock or Indebtedness subject to such Mortgages, or the cost of constructing or improving the Property property subject to such security interests or which is required by law or regulation as a condition to the transaction of any business or the exercise of any privilege, franchise or licenseMortgage;
(fvi) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer[reserved];
(gvii) liens securing reimbursement obligations with respect to letters extensions, renewals or replacements of credit related to trade payables and issued in any Mortgage existing on the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer Issue Date or any of its Subsidiaries from fluctuations Mortgage referred to in interest rates or currencies; or
clauses (i) any through (v) above; provided that the principal amount of Indebtedness secured thereby may not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal or replacementreplacement (plus the amount of all fees, expenses and accrued interest payable in connection therewith), and such extension, renewal or successive extensionsreplacement will be limited to all or a part of the property (plus improvements and construction on such property), renewals shares of capital stock or replacementsIndebtedness that was subject to the Mortgage so extended, renewed or replaced;
(viii) Mortgages on accounts receivable and related assets of the Company and its Restricted Subsidiaries pursuant to a Qualified Securitization Transaction; and
(ix) Permitted Liens.
(c) Notwithstanding the restrictions in whole Section 4.06(a), the Company and any of its Restricted Subsidiaries may create, incur, issue, assume or in partguarantee Indebtedness secured by a Mortgage without adhering to the requirements of Section 4.06(a) or (b), if at the time of such issuance, assumption or guarantee, after giving effect thereto and to the retirement of any security interest referred Indebtedness that is concurrently being retired, the aggregate amount of all such Indebtedness secured by Mortgages that would otherwise be subject to the restrictions in the foregoing Section 4.06(a) (other than any Indebtedness secured by Mortgages described in clauses (a)-(hi) through (ix) of Section 4.06(b); to ) plus the extent aggregate amount (without duplication) of all Attributable Debt of the Company and any of its Restricted Subsidiaries in respect of Sale and Lease-Back Transactions (with the exception of any such transactions that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property are permitted to be so secured under the foregoing clauses (a)-(ha) and (b) of Section 4.07) does not exceed 20% of the Consolidated Net Tangible Assets of the Company as of the date on which any such Indebtedness is subject theretoincurred.
Appears in 1 contract
Samples: First Supplemental Indenture (Huntsman International LLC)
Limitation on Secured Debt. The Issuer will Company or any Subsidiary shall not (nor will the Issuer permit any of its Subsidiaries to) create, assume, or guarantee issue any Secured Debt without making effective provision for securing unless contemporaneously therewith the Notes are secured equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence shall not applyDebt for so long as such Secured Debt is secured by a Lien; except, however, that incurrence of the following Secured Debt shall not require the Company or any Subsidiary to debt secured byequally and ratably secure the Notes:
(a1) purchase money mortgages created Debt of the Company or any Subsidiary which is incurred to secure payment for finance the acquisition, construction or improvement of assets of the Company or its Subsidiaries, which acquisition is consummated, or which construction or improvement is commenced, after the date of this Agreement; provided, however, that such Debt shall not be secured by any Property includingassets of the Company or any Subsidiary other than assets so acquired, but not limited toconstructed or improved (together with (i) to the extent the terms of Secured Debt so provide, repairs and additions thereto and improvements thereof, and (ii) with respect to construction and improvement, any Indebtedness incurred by theretofore unimproved real property on which the Issuer property so constructed or a Subsidiary of the Issuer prior to, at the time of, or within 18 months after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations of such Property, which Indebtedness improved is incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Propertylocated);
(b2) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, Debt of the Company or any conditional sales agreement or any title retention with respect to Property, existing at the time Subsidiary which is secured by assets of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided person where such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person Debt was existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is person was merged or amalgamated into or otherwise consolidated with the Issuer Company or a any Subsidiary of the Issuer or at the time of a sale, other disposition, or lease, or other disposition of the Properties properties of a Person such person as an entirety (or substantially as an entirety entirety) to the Issuer or a Subsidiary Company or
(3) Debt of the Issuer; Company or any Subsidiary issued to refinance such Debt incurred under paragraphs (1) and (2) of this Section 4.02, provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired Debt so issued is not secured by a Lien on assets other than additions or improvements those which secure the Debt being refinanced (together with, to the acquired Propertyextent the terms of new Secured Debt so provide, repairs and additions thereto and improvements thereof);
(e4) security interests on Property Debt of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer Company or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property subject to such security interests or which is required secured by law inventory, accounts receivable, or regulation as a condition to the transaction of any business customers' installment paper or the exercise proceeds thereof, including by means of any privilege, franchise or license;asset securitization; and
(f5) security interests on any Property or assets of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuer;
(g) liens securing reimbursement obligations arising with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i) any extension, renewal or replacement, or successive extensions, renewals or replacements, in whole or in part, of any security interest referred to in the foregoing clauses (a)-(h); to the extent that the principal amount thereof is not increased other than by transaction costs and premiums, if any, and no additional Principal Property other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoProduction Payments.
Appears in 1 contract
Limitation on Secured Debt. The Issuer (a) So long as the Offered Notes shall remain Outstanding, the Company will not (nor will the Issuer permit at any of its Subsidiaries to) time create, assumeassume or guarantee, and will not cause or permit a Restricted Subsidiary to create, assume or guarantee any Secured Debt without making effective provision for securing (and the Company covenants that in such case it will make or cause to be made effective provision) whereby the Offered Notes then Outstanding shall be secured by such Security Interest equally and ratably with such Secured Debt. The foregoing restrictions in the immediately preceding sentence any and all other obligations and indebtedness which shall not applybe so secured; provided, however, that the foregoing covenants shall not be applicable to debt secured bythe following:
(a) purchase money mortgages created any Security Interest on any property hereafter acquired or constructed by the Company or a Restricted Subsidiary (including any improvement on an existing property) to secure payment or provide for the acquisitionpayment of all or any part of the purchase price or construction cost of such property, construction or improvement of including any Property including, but not limited to, any Indebtedness indebtedness incurred by the Issuer Company or a Restricted Subsidiary of the Issuer prior to, at the time of, or within 18 months 365 days after the later of the acquisition, the completion of construction (including any improvements on an existing property) or the commencement of commercial operations operation of such Propertyproperty, which Indebtedness indebtedness is incurred for the purpose of financing or refinancing all or any part of the purchase price thereof or construction or improvements thereon; or (b) any Security Interest upon property existing at the time of acquisition thereof, whether or not assumed by the Company or such Restricted Subsidiary; or (c) any Security Interest existing on the property or on the outstanding shares of capital stock or other equity interests or indebtedness of a Person at the time such Person or an Affiliate of such Person shall become a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for such transaction); or (d) a Security Interest on property or shares of capital stock or other equity interests or indebtedness of a Person existing at the time such Person or an Affiliate of such Person is merged into or consolidated or amalgamated with the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a Person as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary (including any such Security Interest to secure or provide for the payment of all or any part of the purchase price of or consideration for any such merger, consolidation, amalgamation, lease or other acquisition), provided, however, that no such Security Interest shall extend to any other Principal Property of the Company or such Restricted Subsidiary prior to such acquisition or to the other Principal Property thereafter acquired other than additions or improvements to such acquired property;
(2) Security Interests in property of the Company or a Restricted Subsidiary in favour of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favour of Canada or any province thereof or any other country, or any department, agency or instrumentality or political subdivision of Canada or any province thereof or such other country (including, without limitation, Security Interests to secure indebtedness of the pollution control or industrial revenue bond type), in order to permit the Company or a Restricted Subsidiary to perform any contract or subcontract made by it with or at the request of any of the foregoing, or to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price of such Property or construction or improvements on such Property;
(b) mortgages, pledges, liens, security interests or encumbrances (collectively referred to as security interests) on Property, or any conditional sales agreement or any title retention with respect to Property, existing at the time of acquisition thereof, whether or not assumed by the Issuer or a Subsidiary of the Issuer, provided such security interests are not created in anticipation or in furtherance of such acquisition;
(c) security interests on Property of any Person existing at the time such Person becomes a Subsidiary;
(d) security interests on Property of a Person existing at the time such Person is merged or amalgamated into or otherwise consolidated with the Issuer or a Subsidiary of the Issuer or at the time of a sale, lease, or other disposition of the Properties of a Person as an entirety or substantially as an entirety to the Issuer or a Subsidiary of the Issuer; provided that no such security interests shall extend to any other Principal Property of the Issuer or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired Property;
(e) security interests on Property of the Issuer or Property of a Subsidiary of the Issuer in favor of the United States of America or any state thereof, or in favor of any other country, or any department, agency, instrumentality or political subdivision thereof (including, without limitation, security interests to secure Indebtedness of the pollution control or industrial revenue type) in order to permit the Issuer or any Subsidiary of the Issuer to perform a contract or to secure Indebtedness incurred for the purpose of financing all or any part of the purchase price for the cost of constructing or improving the Property property subject to such Security Interests;
(3) any Security Interest existing at the date of original issuance of the Offered Notes;
(4) Any Security Interest on any property or assets of any Restricted Subsidiary to secure indebtedness owing by it to the Company or to a Restricted Subsidiary;
(5) Mechanics’, materialmen’s, carriers’ or other like liens arising in the ordinary course of business (including construction of facilities) in respect of obligations which are not due or which are being contested in good faith;
(6) Any Security Interest arising by reason of deposits with, or the giving of any form of security interests to, any governmental agency or any body created or approved by law or governmental regulations, which is required by law or governmental regulation as a condition to the transaction of any business business, or the exercise of any privilege, franchise or license;
(f7) security interests on any Property Security Interests for taxes, assessments or assets governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or government charges or levies already delinquent but the validity of the Issuer or any Subsidiary of the Issuer to secure Indebtedness owing by it to the Issuer or any Subsidiary of the Issuerwhich is being contested in good faith;
(g8) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith and, in the case of judgment liens, execution thereon is stayed;
(9) Landlords’ liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued on fixtures located on premises leased by the Company or a Restricted Subsidiary in the ordinary course of business, which liens encumber documents and other Property relating to such letters of credit and the products and proceeds thereof;
(h) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing Indebtedness under any interest swap obligations and currency agreements and forward contracts, options, futures contracts, futures options or similar agreements or arrangements designed to protect the Issuer or any of its Subsidiaries from fluctuations in interest rates or currencies; or
(i10) any Any extension, renewal or replacement, replacement (or successive extensions, renewals or replacements, ) in whole or in part, part of any security interest referred Security Interest permitted by subsection (a) of this Section 3.01.
(b) Notwithstanding the provisions of subsection (a) of this Section 3.01, the Company and any one or more Restricted Subsidiaries may, in addition, without securing the Offered Notes, issue, assume or guarantee Secured Debt that would otherwise be subject to in the foregoing clauses (a)-(h); restrictions in an aggregate amount which, together with all other Secured Debt of the Company and its Restricted Subsidiaries that would otherwise be subject to the extent foregoing restrictions (but not including Secured Debt permitted to be secured under subsection (a) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 3.02) in existence at such time (not including Sale and Leaseback Transactions the proceeds of which have been or will be applied in accordance with clause (b) of Section 3.02), does not exceed 10% of Consolidated Shareholders’ Equity, determined as of a date not more than 90 days prior thereto.
(c) In the event that the principal amount thereof Company shall hereafter secure the Offered Notes equally and ratably with any other obligation or indebtedness pursuant to the provisions of this Section 3.01, the Trustee is not increased other than by transaction costs hereby authorized to enter into an indenture or agreement supplemental to the Indenture and premiumsthis Supplemental Indenture and to take such action, if any, as it may deem advisable to enable it to enforce effectively the rights of the Holders of the Offered Notes so secured, equally and no additional Principal Property ratably with such other than Principal Property permitted to be so secured under the foregoing clauses (a)-(h) is subject theretoobligation or indebtedness.
Appears in 1 contract
Samples: First Supplemental Indenture (Magna International Inc)
