Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant that in such case they will first make or cause to be made effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests: (i) Security Interests upon any property hereafter acquired, constructed, developed or improved by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or (b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or (c) 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; or (d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or (e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or (f) 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; or (g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or (h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or (i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or (j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary; (k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or (l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
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Samples: Indenture (Anixter International Inc), Indenture (Anixter International Inc)
Restriction on Creation of Secured Debt. So long as the Securities of any series Notes remain Outstanding, the Guarantor and the Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant that in such case they will first make or cause to be made effective provision) whereby the Securities of each series Notes then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests:
(a) Security Interests securing indebtedness incurred pursuant to Credit Facilities (including amounts outstanding on the Issue Date) in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) $950,000,000 and (y) the Borrowing Base; or
(i) Security Interests upon any property hereafter acquired, constructed, developed or improved by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(bc) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(cd) 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; or
(de) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(ef) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(fg) 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; or
(gh) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(hi) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(ij) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(jk) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(kl) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(lm) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (kl), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm other entity at the time such corporation or firm other entity shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Guarantor, the Company Issuer or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm other entity as an entirety or substantially as an entirety to the Guarantor, the Company Issuer or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company Issuer or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or -21- 28 instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(jc) Security Interests in favor Any mortgage, security interest, pledge, lien or encumbrance existing on property owned by the Issuer or any of its Subsidiaries on the date of this Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance created pursuant to the creation of trusts or other arrangements funded solely with cash, cash equivalents or other marketable investments or securities of the United States type customarily subject to such arrangements in customary financial practice with respect to long-term or medium-term indebtedness for money borrowed, the sole purpose of which is to make provision for the retirement or defeasance, without prepayment of indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance securing (i) all or part of the cost of exploring, producing, gathering, processing, marketing, drilling or developing any properties of the Company or any state, county or local governmentof its Subsidiaries, or any agency of the United Statessecuring indebtedness incurred to provide funds therefor, or any holder of bonds (ii) indebtedness incurred to finance all or other securities thereof issued, in connection with the financing part of the cost of acquiring, constructing constructing, altering, improving or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, repairing any such property designed primarily for the purpose of pollution control)or assets, and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing incurred to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesprovide funds therefor; or
(lf) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through (ke); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant that in such case they will first make or cause to be made effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests:
(i) Security Interests upon any property hereafter acquired, constructed, developed or improved by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm other entity at the time such corporation or firm other entity shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Guarantor, the Company Issuer or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm other entity as an entirety or substantially as an entirety to the Guarantor, the Company Issuer or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or-21- 28
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company Issuer or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(jc) Security Interests in favor Any mortgage, security interest, pledge, lien or encumbrance existing on property owned by the Issuer or any of its Subsidiaries on the date of this Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance created pursuant to the creation of trusts or other arrangements funded solely with cash, cash equivalents or other marketable investments or securities of the United States type customarily subject to such arrangements in customary financial practice with respect to long-term or medium-term indebtedness for money borrowed, the sole purpose of which is to make provision for the retirement or defeasance, without prepayment of indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance securing (i) all or part of the cost of exploring, producing, gathering, processing, marketing, drilling or developing any properties of the Company or any state, county or local governmentof its Subsidiaries, or any agency of the United Statessecuring indebtedness incurred to provide funds therefor, or any holder of bonds (ii) indebtedness incurred to finance all or other securities thereof issued, in connection with the financing part of the cost of acquiring, constructing constructing, altering, improving or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, repairing any such property designed primarily for the purpose of pollution control)or assets, and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing incurred to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesprovide funds therefor; or
(lf) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through (ke); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm other entity at the time such corporation or firm other entity shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Guarantor, the Company Issuer or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm other entity as an entirety or substantially as an entirety to the Guarantor, the Company Issuer or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company Issuer or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(jc) Security Interests in favor of the United States Any mortgage, security interest, pledge, lien or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving encumbrance existing on property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company Issuer or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of its Subsidiaries on the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary date of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesthis Indenture; or
(ld) Any extensionmortgage, renewal security interest, pledge, lien or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited encumbrance created pursuant to the property which secured creation of trusts or other arrangements funded solely with cash, cash equivalents or other marketable investments or securities of the Security Interest so extended, renewed or refunded and additions type customarily subject to such property.arrangements in customary financial practice with respect to long-term or
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the The Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, guarantee any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made effective provision) whereby the Securities of each any series then Outstanding and outstanding and, if the Company shall so determine, any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled theretoCompany, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, pledge, lien, security interest or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, pledge, lien, security interest or encumbrance on any fixed asset or other physical or real property hereafter acquired, constructed, developed acquired (including acquisition through merger or consolidation) or hereafter constructed or improved by the GuarantorCompany and created, or for the Company or creation of which a Restricted Subsidiary and created bona fide firm commitment in writing was executed, prior to or to, contemporaneously with, with or within 180 days after such acquisition or the acquisition completion of such construction or improvement or the commencement of commercial operation or the placing in service of such property which by the Company, whichever is later, to secure or provide for the payment of all or a parcel part of real the purchase price or cost of construction or improvement of such property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests any mortgage, pledge, lien, security interest or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company or a Restricted SubsidiaryCompany; or (iii) any conditional sales agreement mortgage, pledge, lien, security interest or other title retention agreement with respect to any encumbrance on property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm existing at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the GuarantorCompany; provided, however, that the Company or a Restricted Subsidiary; provided in each case that lien of any such Security Interest described in mortgage, pledge, lien, security interest or encumbrance permitted by clauses (ii), ) or (iii) or of this subparagraph (iva) does shall not attach extend to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to any event referred to in such clauses or to other property thereafter acquired by the creation thereofCompany, other than additions and improvements to the property referred to in such clauses; or
(b) Security Interests securing indebtedness Mortgages, including mortgages, pledges, liens, security interests or encumbrances, on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state State thereof, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests States of America or any State thereof, or in property favor of the Guarantorany other country, the Company or a Restricted Subsidiary any department, agency or instrumentality or political subdivision thereof, 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 or the cost of construction, development, or substantial repair, alteration construction or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, pledge, lien, security interest or encumbrance referred to in the foregoing subparagraphs (a) through and (kb); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage so extended, renewed or refunded replaced and additions to such property; or
(d) Any mortgage, pledge, lien, security interest or encumbrance securing indebtedness owing by the Company to one or more Wholly-owned Subsidiaries. Notwithstanding the foregoing provisions of this Section 1005, the Company may create, assume or guarantee Secured Debt which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Secured Debt of the Company which would otherwise be subject to the foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (d) above), does not at the time exceed 5% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Indenture (Alco Standard Corp)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured that is expressly by a Security Interest, its terms Subordinated Indebtedness without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such Subordinated Indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such Subordinated Indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm other entity at the time such corporation or firm other entity shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Guarantor, the Company Issuer or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Ocean Energy Inc /La/)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured that is expressly by a Security Interest, its terms Subordinated Indebtedness without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such Subordinated Indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrancesecuring the Securities with the same relative priority as such Subordinated Indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after the twelve months after, such acquisition of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving completion of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary construction to secure partial, progress, advance or other payments or any indebtedness incurred provide for the purpose payment of financing all or any part of the purchase price of such property or the cost of constructionconstruction thereof, development, as the case may be; or substantial repair, alteration or improvement (ii) any mortgage on property (including any unimproved portion of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.partially improved
Appears in 1 contract
Samples: Senior Subordinated Indenture (Seagull Energy Corp)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain OutstandingNotes are outstanding, the Guarantor and the Company will shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series Notes then Outstanding outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(ia) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) the acquisition by the Guarantor, any mortgage on property (including any unimproved portion of partially improved property) of the Company or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Company; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation existing at the time such corporation is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary to secure partial, 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through and (kb); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property. Notwithstanding the foregoing provisions of this Section 3.2 the Company and any one or more Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt which would otherwise be subject to the foregoing 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 foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (c) above) and the aggregate value of the Sale and Leaseback Transactions 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 3.3), does not at the time exceed 5% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Indenture (Halliburton Co)
Restriction on Creation of Secured Debt. So long as the Securities of any series Notes remain Outstanding, the Guarantor and the Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant that in such case they will first make or cause to be made effective provision) whereby the Securities of each series Notes then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests:
(a) Security Interests securing indebtedness incurred pursuant to Credit Facilities (including amounts outstanding on the Issue Date) in an aggregate principal amount at any one time outstanding not to exceed the greater of (x) $950,000,000 and (y) the Borrowing Base; or
(i) Security Interests upon any property hereafter acquired, constructed, developed or improved by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(bc) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the Company Pulte will not at any time create, incur, assume or guarantee, and will not cause or permit a any of its Restricted Subsidiary Subsidiaries to create, incur, assume or guarantee, any Secured Debt, and Debt (including the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute creation of Secured Debt if it were secured by a Security Interest, the securing of existing debt) without first making effective provision (and the Guarantor and the Company covenant Pulte covenants that in such case they it and its Restricted Subsidiaries will first make or cause to be made effective provision) whereby the Securities indebtedness and obligations of each series then Outstanding and any other indebtedness of or guaranteed by Pulte to the Guarantor Banks and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, Issuing Bank under this Agreement shall be secured by the Security Interest securing such Secured Debt equally and ratably with (or prior to) any and all other obligations and indebtedness debt thereby secured, for so long as any such other obligations and indebtedness debt shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security InterestsLiens:
(ia) Security Interests upon any property hereafter acquiredAny Liens on model homes, constructedhomes held for sale, developed homes that are under contract for sale, contracts for the sale of homes, land (improved or improved by the Guarantorunimproved), the Company manufacturing plants, warehouses or a Restricted Subsidiary office buildings and created prior to fixtures and equipment located thereat or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or thereon;
(iib) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such Any Lien on property existing at the time of the acquisition thereofthereof by Pulte or a Subsidiary, which Security Interests secure Lien secures obligations assumed by the Guarantor, the Company Pulte or a Restricted Subsidiary; ;
(c) Any Lien existing on the property of a corporation or firm at the time such corporation or firm is merged into or consolidated with Pulte or a Subsidiary;
(iiid) any Any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company Pulte or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or;
(e) Security Interests for taxesAny Lien to secure debt of a Subsidiary to Pulte or to another Subsidiary wholly-owned, assessments directly or governmental charges or levies not yet delinquentindirectly, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faithby Pulte; or
(f) Security Interests (including judgment liens) arising in connection with legal proceedings so long as such proceedings are being contested in good faith andAny amendment, in the case of judgment liensrestatement, execution thereon is stayed; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantorsupplement, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United Statesrenewal, or any state thereofreplacement, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal extension or refunding (or successive amendments, restatements, supplements, renewals, replacements, extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest Lien referred to in the foregoing subparagraphs (ab) through (ke), inclusive; provided, provided however, that the principal amount of such the Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of immediately prior to such extensionamendment, renewal restatement, supplement, renewal, replacement or refunding, refunding and that the Security Interest Lien securing such Secured Debt shall be limited to the property which which, immediately prior to such amendment, restatement, supplement, renewal, replacement or refunding secured the Security Interest so extended, renewed or refunded such Secured Debt and additions conditions to such property. Notwithstanding subparagraphs (b) and (c) above, the creation, incurrence, assumption or guarantee of any Secured Debt described therein shall not be permitted (i) if such Secured Debt was created, incurred, assumed or guaranteed in contemplation of the event or transaction referred to in such subparagraphs or (ii) if the Lien securing such Secured Debt attaches to or affects property owned by Pulte or a Restricted Subsidiary prior to the event or transaction referred to in said subparagraphs. Notwithstanding anything to the contrary in this Section 5.01, Pulte and any one or more of its Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt if immediately thereafter the sum of (i) the aggregate principal amount of all Secured Debt created, incurred, assumed or guaranteed by Pulte or any Restricted Subsidiary outstanding as of the date of determination (calculated without duplication and excluding Secured Debt permitted to be created, incurred, assumed or guaranteed pursuant to subparagraph (a) through (f), inclusive, above and any Secured Debt in relation to which the securities issued pursuant to the Indenture have been equally and ratably secured) and (ii) all Attributable Debt in respect of Sale and Leaseback Transactions as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets (excluding Attributable Debt in respect of a Sale and Lease Transaction as to which the net proceeds of the property sold or transferred are applied as provided in clause (iii) of Section 5.02).
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as After the Securities date of any series remain Outstandingoriginal issuance of Securities, the Guarantor and the Company will not at any time create, incur, assume or guarantee, and will not cause or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and Debt (including the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute creation of Secured Debt if it were secured by a Security Interest, the securing of existing indebtedness) without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made effective provision) whereby the Securities of each all series then Outstanding and outstanding (together with any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, be so secured) shall be secured by the Security Interest securing such Secured Debt equally and ratably with (or prior to) any and all other obligations and indebtedness thereby secured, for so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests:
(ia) Any Security Interests Interest upon any property hereafter which consists solely of one or more parcels of real property, manufacturing plants, warehouses or office buildings and of fixtures and equipment located on or at such parcels, plants, warehouses or buildings and which is acquired, constructed, developed or improved by the Guarantor, the Company or a Restricted Subsidiary and after the date of original issuance of Securities, which Security Interest is created prior to or contemporaneously with, or within 180 days after 24 months after, (i) in the case of the acquisition of property which is a parcel of real such property, a building, machinery or equipment; or the completion of such acquisition and (ii) in the case of the construction, development or improvement of such property, the later to occur of the completion of such construction, development or improvement or the commencement of operation, use or commercial production (exclusive of test and start-up periods) of the property, which Security Interest secures or provides for the payment of all or any part of the acquisition by the Guarantor, the Company or a Restricted Subsidiary cost of property subject to Security Interests upon such property or the cost of construction, development or improvement thereof, as the case may be;
(b) Any Security Interest on property (i) existing at the time of the acquisition thereof, which Security Interests secure obligations assumed thereof by the Guarantor, the Company or a Restricted Subsidiary; , which Security Interest secures obligations assumed by the Company or a Restricted Subsidiary or (iiiii) any incurred by the Company or a Restricted Subsidiary to secure payment of all or part of the purchase price thereof or to secure Secured Debt incurred prior to, at the time of, or within 24 months after the acquisition for the purpose of financing all or part of the purchase price thereof by the Company or a Restricted Subsidiary;
(c) Any Security Interest existing on the property of a corporation or firm at the time such corporation or firm is merged into or consolidated with the Company or a Restricted Subsidiary;
(d) Any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or ;
(ive) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Any Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing secure indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or;
(f) Any Security Interests (including judgment liens) arising Interest on any property to secure indebtedness incurred in connection with legal proceedings so long as such proceedings are being contested in good faith andthe construction, in the case installation or financing of judgment lienspollution control or abatement facilities or other forms of Industrial revenue bond financing or indebtedness, execution thereon is stayed; or
(g) Landlords’ liens on fixtures located on the premises leased issued or guaranteed by the GuarantorUnited States of America, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, thereof or any department, agency or instrumentality of either or similar indebtedness issued to or guaranteed for the United States; orbenefit of a foreign government, any state thereof or any department, agency or instrumentality of either or an international finance agency or any division or department thereof, including the World Bank, the International Finance Corp. and the Multilateral Investment Guarantee Agency;
(g) Any purchase money Security Interests on personal property;
(h) Any Security Interest on the stock, partnership or other equity interest of the Company or any Restricted Subsidiary in any Joint Venture or any subsidiary which owns an equity interest in such Joint Venture to secure indebtedness, provided the amount of such indebtedness is contributed and/or advanced solely to such Joint Venture;
(i) Any Security Interest securing Senior Indebtedness (as defined in the applicable supplemental Indenture and Prospectus Supplement), including without limitation, the Senior Secured Debt Securities (as defined in the applicable supplemental Indenture and Prospectus Supplement);
(j) Any Security Interest incurred to secure the performance of surety or appeal bonds incurred in the ordinary course of business;
(k) Any Security Interest incidental to the normal conduct of the business of the Company or any Restricted Subsidiary or the ownership of its property or the conduct of the ordinary course of its business (including without limitation, (A) Security Interests incurred by law, including mechanics', materialmens' and carriers' liens or other like Security Interests, (B) Certain Security Interests for taxes or assessments or similar charges, (C) Zoning restrictions, easements, licenses, covenants, reservations, restrictions on the use of real property and similar other minor irregularities of title, (D) Security Interests to secure the performance of statutory obligations, tenders, bids, leases, progress payments, performance or return-of-money bonds, or other similar bonds or other obligations of a similar nature incurred in property the ordinary course of the Guarantor, business and (E) Security Interests required by any contract or statute in order to permit the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company to perform any contract or subcontract made by it with or pursuant to the requirements of a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesgovernmental entity); orand
(l) Any security interest arising out of or in connection with any extension, renewal renewal, replacement, or refunding (or successive extensions, renewals renewals, replacments or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will shall not at any time create, incur, assume incur or guaranteeassume, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume incur or guaranteeassume, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) the acquisition by the Guarantor, any mortgage on property (including any unimproved portion of partially improved property) of the Company or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Company; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation existing at the time such corporation is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through and (kb); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property. Notwithstanding the foregoing provisions of this Section 4.10, the Company and any one or more Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt which would otherwise be subject to the foregoing 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 foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (c) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 4.11) 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 4.11), does not at the time exceed five percent of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Indenture (Halliburton Co)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of property which is a parcel of real property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations assumed by the Guarantor, the Company or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; orconstruction
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company Issuer or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(jc) Security Interests in favor Any mortgage, security interest, pledge, lien or encumbrance existing on property owned by the Issuer or any of its Subsidiaries on the date of this Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance created pursuant to the creation of trusts or other arrangements funded solely with cash, cash equivalents or other marketable investments or securities of the United States type customarily subject to such arrangements in customary financial practice with respect to long-term or medium-term indebtedness for money borrowed, the sole purpose of which is to make provision for the retirement or defeasance, without prepayment of indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance on the assets or properties of ENSTAR Alaska; or
(f) Any mortgage, security interest, pledge, lien or encumbrance securing (i) all or part of the cost of exploring, producing, gathering, processing, marketing, drilling or developing any properties of the Company or any state, county or local governmentof its Subsidiaries, or any agency of the United Statessecuring indebtedness incurred to provide funds therefor, or any holder of bonds (ii) indebtedness incurred to finance all or other securities thereof issued, in connection with the financing part of the cost of acquiring, constructing constructing, altering, improving or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, repairing any such property designed primarily for the purpose of pollution control)or assets, and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing incurred to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesprovide funds therefor; or
(lg) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through (kf); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property.. Notwithstanding the foregoing provisions of this Section 3.6, the Issuer and any one or more Restricted Subsidiaries may create, incur, assume or guarantee Secured Debt which would otherwise be subject to the foregoing restrictions in an aggregate amount that, without duplication, together with all other Secured Debt of the Issuer and its Restricted Subsidiaries which would otherwise be subject to the foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (g) above) and the aggregate value of the Sale and Leaseback Transactions (as defined in Section 3.7) 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 3.7) does not at the time
Appears in 1 contract
Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the The Company will not at any time create, incurassume or guarantee any Secured Debt and will not permit any Subsidiary at any time to create, assume or guaranteeguarantee any Secured Debt without, and will not cause in any such case, making, or permit a Restricted causing such Subsidiary to createmake, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made effective provision) whereby the Securities of each any series then Outstanding and and, if the Company shall so determine, any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled theretorelevant Subsidiary, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, pledge, lien, security interest or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, pledge, lien, security interest or encumbrance on any fixed asset or other physical or real property hereafter acquired, constructed, developed acquired (including acquisition through merger or consolidation) or hereafter constructed or improved by the GuarantorCompany or any Subsidiary and created, or for the creation of which a bona fide firm commitment in writing was executed, prior to, contemporaneously with or within 360 days after such acquisition or the completion of such construction or improvement or the commencement of commercial operation or the placing in service of such property by the Company or any Subsidiary, whichever is later, to secure or provide for the payment of all or a Restricted Subsidiary and created prior to part of the purchase price or contemporaneously with, cost of construction or within 180 days after the acquisition improvement of property which is a parcel of real such property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests any mortgage, pledge, lien, security interest or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company or a Restricted any Subsidiary; or (iii) any conditional sales agreement mortgage, pledge, lien, security interest or other title retention agreement with respect to any encumbrance on property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm existing at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted any Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted any Subsidiary; provided in each case provided, however, that the lien of any such Security Interest described in mortgage, pledge, lien, security interest or encumbrance permitted by clauses (ii), (iii10.07(a)(ii) or (iv10.07(a)(iii) does shall not attach extend to or affect property owned by the Guarantor, Company or any Subsidiary prior to any event referred to in such clauses or to other property thereafter acquired by the Company or such Restricted Subsidiary prior any Subsidiary, other than additions and improvements to the creation thereofproperty referred to in such clauses; or
(b) Security Interests securing indebtedness Mortgages, including mortgages, pledges, liens, security interests or encumbrances, on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) Mechanics’, materialmen’s, carriers’ or other like liens arising any subsidiary 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state State thereof, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests States of America or any State thereof, or in property favor of the Guarantorany other country, the Company or a Restricted Subsidiary any department, agency or instrumentality or political subdivision thereof, 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 or the cost of construction, development, or substantial repair, alteration construction or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, pledge, lien, security interest or encumbrance referred to in the foregoing subparagraphs (aparagraphs 10.07(a) through (kand 10.07(b); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage so extended, renewed or refunded replaced and additions to such property; or
(d) Any mortgage, pledge, lien, security interest or encumbrance securing indebtedness owing by the Company to one or more Wholly-owned Subsidiaries; or
(e) Any lien, chattel mortgage, security agreement, and other title retention agreement on tangible personal property, resulting from the Company, any Subsidiary, or an owner-trustee representing either of the foregoing acquiring or agreeing to acquire the same property for substantially concurrent leasing or financing to third parties in Leveraged Leases or Partnerships; or
(f) Any liens to secure non-recourse obligations in connection with the Company's or a Subsidiary's engaging in Leveraged Lease or single-investor lease transactions or sales of chattel paper generated in the ordinary course of business; or
(g) Any lien, mortgage, pledge, security agreement, interest or encumbrance securing indebtedness resulting from any financing transaction entered into in the ordinary course of the Company's business involving the sale of Company receivables consisting of loan and/or lease obligations owed to the Company to any Subsidiary of the Company or any special purpose entity formed by the Company formed for the sole purpose of effecting such financing and which applies only to such Subsidiary or such special purpose entity and its assets. Notwithstanding the foregoing provisions of this Section 10.07, the Company may create, assume or guarantee Secured Debt which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Secured Debt of the Company which would otherwise be subject to the foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (d) above), does not at the time exceed 10% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Indenture (Pitney Bowes Credit Corp)
Restriction on Creation of Secured Debt. So long as the Securities of any series remain Outstanding, the Guarantor and the The Company will not at any time create, incurassume or guarantee any Secured Debt and will not permit any Subsidiary at any time to create, assume or guaranteeguarantee any Secured Debt without, and will not cause in any such case, making, or permit a Restricted causing such Subsidiary to createmake, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant covenants that in such case they it will first make or cause to be made effective provision) whereby the Securities of each any series then Outstanding and and, if the Company shall so determine, any other indebtedness of or guaranteed by the Guarantor and the Company or such Restricted Subsidiary then entitled theretorelevant Subsidiary, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, pledge, lien, security interest or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, pledge, lien, security interest or encumbrance on any fixed asset or other physical or real property hereafter acquired, constructed, developed acquired (including acquisition through merger or consolidation) or hereafter constructed or improved by the GuarantorCompany or any Subsidiary and created, or for the creation of which a bona fide firm commitment in writing was executed, prior to, contemporaneously with or within 360 days after such acquisition or the completion of such construction or improvement or the commencement of commercial operation or the placing in service of such property by the Company or any Subsidiary, whichever is later, to secure or provide for the payment of all or a Restricted Subsidiary and created prior to part of the purchase price or contemporaneously with, cost of construction or within 180 days after the acquisition improvement of property which is a parcel of real such property, a building, machinery or equipment; or (ii) the acquisition by the Guarantor, the Company or a Restricted Subsidiary of property subject to Security Interests any mortgage, pledge, lien, security interest or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company or a Restricted any Subsidiary; or (iii) any conditional sales agreement mortgage, pledge, lien, security interest or other title retention agreement with respect to any encumbrance on property acquired by the Guarantor, the Company or a Restricted Subsidiary; or (iv) Security Interests existing on the property or on the outstanding shares or indebtedness of a corporation or firm existing at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted any Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted any Subsidiary; provided in each case provided, however, that the lien of any such Security Interest described in mortgage, pledge, lien, security interest or encumbrance permitted by clauses (ii), (iii10.7(a)(ii) or (iv10.7(a)(iii) does shall not attach extend to or affect property owned by the Guarantor, Company or any Subsidiary prior to any event referred to in such clauses or to other property thereafter acquired by the Company or such Restricted Subsidiary prior any Subsidiary, other than additions and improvements to the creation thereofproperty referred to in such clauses; or
(b) Security Interests securing indebtedness Mortgages, including mortgages, pledges, liens, security interests or encumbrances, on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) Mechanics’, materialmen’s, carriers’ or other like liens arising any subsidiary 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state State thereof, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests States of America or any State thereof, or in property favor of the Guarantorany other country, the Company or a Restricted Subsidiary any department, agency or instrumentality or political subdivision thereof, 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 or the cost of construction, development, or substantial repair, alteration construction or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, pledge, lien, security interest or encumbrance referred to in the foregoing subparagraphs (aparagraphs 10.7(a) through (kand 10.7(b); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage so extended, renewed or refunded replaced and additions to such property; or
(d) Any mortgage, pledge, lien, security interest or encumbrance securing indebtedness owing by the Company to one or more Wholly-owned Subsidiaries; or
(e) Any lien, chattel mortgage, security agreement, and other title retention agreement on tangible personal property, resulting from the Company, any Subsidiary, or an owner-trustee representing either of the foregoing acquiring or agreeing to acquire the same property for substantially concurrent leasing or financing to third parties in Leveraged Leases or Partnerships; or
(f) Any liens to secure non-recourse obligations in connection with the Company's or a Subsidiary's engaging in Leveraged Lease or single-investor lease transactions or sales of chattel paper generated in the ordinary course of business; or
(g) Any lien, mortgage, pledge, security agreement, interest or encumbrance securing indebtedness resulting from any financing transaction entered into in the ordinary course of the Company's business involving the sale of Company receivables consisting of loan and/or lease obligations owed to the Company to any Subsidiary of the Company or any special purpose entity formed by the Company formed for the sole purpose of effecting such financing and which applies only to such Subsidiary or such special purpose entity and its assets. Notwithstanding the foregoing provisions of this Section 10.7, the Company may create, assume or guarantee Secured Debt which would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with all other Secured Debt of the Company which would otherwise be subject to the foregoing restrictions (not including Secured Debt permitted to be secured under subparagraphs (a) through (d) above), does not at the time exceed 10% of Consolidated Net Tangible Assets.
Appears in 1 contract
Samples: Indenture (Pitney Bowes Credit Corp)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured by a Security Interest, without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, however, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interests:following: (a)
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm at the time such corporation or firm shall become a Restricted Subsidiary or is merged into or consolidated with the Guarantor, the Company or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm as an entirety or substantially as an entirety to the Guarantor, the Company or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request of the United States, or any state thereof, or any department, agency or instrumentality of the United States; or
(i) Security Interests in property of the Guarantor, the Company or a Restricted Subsidiary to secure partial, progress, advance or other payments or any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction, development, or substantial repair, alteration or improvement of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property; or
(j) Security Interests in favor of the United States or any state, county or local government, or any agency of the United States, or any holder of bonds or other securities thereof issued, in connection with the financing of the cost of acquiring, constructing or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, any such property designed primarily for the purpose of pollution control), and any transfers of title to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivables; or
(l) Any extension, renewal or refunding (or successive extensions, renewals or refundings) in whole or in part of any Secured Debt secured by any Security Interest referred to in the foregoing subparagraphs (a) through (k), inclusive, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refunding, and that the Security Interest securing such Secured Debt shall be limited to the property which secured the Security Interest so extended, renewed or refunded and additions to such property.14
Appears in 1 contract
Samples: Indenture Agreement (Halliburton Co)
Restriction on Creation of Secured Debt. So long as any of the Securities of any series remain Outstandingare outstanding, the Guarantor and the Company will Issuer shall not at any time create, incur, assume or guarantee, and will shall not cause cause, suffer or permit a Restricted Subsidiary to create, incur, assume or guarantee, any Secured Debt, and the Guarantor and the Company will not at any time create, and will not cause or permit a Restricted Subsidiary to create, any Security Interest securing any indebtedness existing on the date hereof which would constitute Secured Debt if it were secured that is expressly by a Security Interest, its terms Subordinated Indebtedness without first making effective provision (and the Guarantor and the Company covenant Issuer covenants that in such case they it will first make or cause to be made such effective provision) whereby the Securities of each series then Outstanding and any other indebtedness of or guaranteed by the Guarantor and the Company Issuer or such Restricted Subsidiary then entitled thereto, subject to applicable priorities of payment, shall be secured by the Security Interest securing such Secured Debt mortgage, security interest, pledge, lien or encumbrance equally and ratably with any and all other obligations and indebtedness thereby secured, so long as any such other obligations and indebtedness shall be so secured, ; provided, howeverthat if any such mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness ceases to exist, such equal and ratable security for the benefit of the Holders of Securities shall automatically cease to exist without any further action; provided further that if such Subordinated Indebtedness is expressly subordinated to the Securities, the mortgage, security interest, pledge, lien or encumbrance securing such Subordinated Indebtedness shall be subordinate and junior to the mortgage, security interest, pledge, lien or encumbrance securing the Securities with the same relative priority as such Subordinated Indebtedness shall have with respect to the Securities; provided further, that the foregoing covenants shall not be applicable to Secured Debt secured solely by one or more of the following Security Interestsfollowing:
(i) Security Interests upon Any mortgage, security interest, pledge, lien or encumbrance on any property hereafter acquired, constructed, developed acquired (including acquisition through merger or improved consolidation) or constructed by the Guarantor, the Company Issuer or a Restricted Subsidiary and created prior to or contemporaneously with, or within 180 days after twelve months after, such acquisition or the acquisition completion of construction to secure or provide for the payment of all or any part of the purchase price of such property which is a parcel or the cost of real propertyconstruction thereof, a building, machinery or equipmentas the case may be; or (ii) any mortgage on property (including any unimproved portion of partially improved property) of the acquisition by the Guarantor, the Company Issuer or a Restricted Subsidiary created within twelve months of completion of construction of a new plant or plants on such property to secure all or part of the cost of such construction if, in the opinion of the Board of Directors, such property or such portion thereof was prior to such construction substantially unimproved for the use intended by the Issuer; or (iii) the acquisition of property subject to Security Interests any mortgage, security interest, pledge, lien or encumbrance upon such property existing at the time of the acquisition thereof, which Security Interests secure obligations whether or not assumed by the Guarantor, the Company Issuer or a Restricted Subsidiary; or (iii) any conditional sales agreement or other title retention agreement with respect to any property acquired by the Guarantor, the Company or a such Restricted Subsidiary; or (iv) Security Interests any mortgage, security interest, pledge, lien or encumbrance existing on the property or on the outstanding shares or indebtedness of a corporation or firm other entity at the time such corporation or firm other entity shall become a Restricted Subsidiary Subsidiary; or (v) any mortgage, security interest, pledge, lien or encumbrance on property of a corporation or other entity existing at the time such corporation or other entity is merged into or consolidated with the Guarantor, the Company Issuer or a Restricted Subsidiary or at the time of a sale, lease or other disposition of the properties of a corporation or firm other entity as an entirety or substantially as an entirety to the Guarantor, the Company Issuer or a Restricted Subsidiary; provided in each case that any such Security Interest described in clauses (ii), (iii) or (iv) does not attach to or affect property owned by the Guarantor, the Company or such Restricted Subsidiary prior to the creation thereof; or
(b) Security Interests securing indebtedness Mortgages on property of a Restricted Subsidiary to the Guarantor, the Company or to another Restricted Subsidiary; or
(c) 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; or
(d) Security Interests arising by reason of deposits with, or the giving of any form of security 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, or the exercise of any privilege, franchise or license; or
(e) Security Interests for taxes, assessments or governmental charges or levies not yet delinquent, or the Security Interests for taxes, assessments or governmental charges or levies already delinquent but the validity of which is being contested in good faith; or
(f) 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; or
(g) Landlords’ liens on fixtures located on the premises leased by the Guarantor, the Company Issuer or a Restricted Subsidiary in the ordinary course of business; or
(h) Security Interests arising in connection with contracts and subcontracts with or made at the request favor of the United States, States of America or any state thereofState thereof or any foreign government, or any department, agency or instrumentality or political subdivision of the United States; or
(i) Security Interests in property of the Guarantorany thereof, the Company or a Restricted Subsidiary 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 or the cost of construction, development, or substantial repair, alteration or improvement construction of the property subject to such Security Interests if the commitment for the financing is obtained not later than 180 days after the later of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved propertymortgages; or
(jc) Security Interests in favor Any mortgage, security interest, pledge, lien or encumbrance existing on property owned by the Issuer or any of its Subsidiaries on the date of this Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance created pursuant to the creation of trusts or other arrangements funded solely with cash, cash equivalents or other marketable investments or securities of the United States type customarily subject to such arrangements in customary financial practice with respect to long-term or medium-term Indebtedness for money borrowed, the sole purpose of which is to make provision for the retirement or defeasance, without prepayment, of Indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance on the assets or properties of ENSTAR Alaska; or
(f) Any mortgage, security interest, pledge, lien or encumbrance securing (i) all or part of the cost of exploring, producing, gathering, processing, marketing, drilling or developing any properties of the Company or any state, county or local governmentof its Subsidiaries, or any agency of the United Statessecuring Indebtedness incurred to provide funds therefor, or any holder of bonds (ii) Indebtedness incurred to finance all or other securities thereof issued, in connection with the financing part of the cost of acquiring, constructing constructing, altering, improving or improving property of the Guarantor, the Company or any Restricted Subsidiary (including, without limitation, repairing any such property designed primarily for the purpose of pollution control)or assets, and any transfers of title or securing Indebtedness incurred to any such property and any related property or Security Interest in any such property and any related property, in favor of such government or governmental agency or any such security holders in connection with the acquisition, construction, improvement, attachment or removal of such property; provided that such transfer of title or the lien of any such Security Interest does not apply to any Principal Facility now or hereafter owned by the Guarantor, the Company or any Restricted Subsidiary;
(k) Security Interests securing indebtedness of the Company or a Restricted Subsidiary owing to an Unrestricted Subsidiary of the character described in clause (c) of the definition of Unrestricted Subsidiary that finances accounts receivablesprovide funds therefor; or
(lg) Any extension, renewal or refunding replacement (or successive extensions, renewals or refundingsreplacements) in whole or in part of any Secured Debt secured by any Security Interest mortgage, security interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs (a) through (kf); provided, inclusivehowever, provided that the principal amount of such Secured Debt secured thereby shall not exceed the principal amount outstanding at the time of such extension, renewal or refundingreplacement, and that the Security Interest securing such Secured Debt extension, renewal or replacement shall be limited to the property which secured the Security Interest mortgage, security interest, pledge, lien or encumbrance so extended, renewed or refunded replaced and additions to such property.
Appears in 1 contract
Samples: Senior Subordinated Indenture (Seagull Energy Corp)
