Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties. (b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b). (c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). (d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents. (e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 6 contracts
Samples: Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(k), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 sixty (60) days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents documents, including, without limitation, customary legal opinions as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to any Person the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is or becomes a direct Wholly-Owned Restricted Subsidiary of a Loan Party (other than any Excluded Subsidiary) after the Closing DateDate (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or otherwise merged out of existence or dissolved within sixty (60) days of its formation (or such later date as permitted by the Administrative Agent in its sole discretion)) or upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrower), promptly within sixty (and in any event within 60 60) days after such Person becomes a Subsidiary) formation, acquisition, designation or cessation, or such longer period as the Administrative Agent may approve in its reasonable discretion, the Borrower shall:
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly-Owned Restricted Subsidiary owned by such Loan Partythat constitute Collateral and that are “certificated securities” (as defined in Article 8 of the UCC), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly-Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and as applicable; and
(ii) cause any such new Wholly-Owned Restricted Subsidiary (except Excluded Subsidiaries), (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (including, without limitation, (1) all documentation and other information with respect to such new Restricted Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (2) customary secretary’s certificates with respect to each new Restricted Subsidiary attaching such documents as were delivered by the original Subsidiary Guarantors on the Closing Date) or, to the extent the Borrower elects to join such Subsidiary as a co-borrower, to become a Borrower in compliance with Section 2.23 hereof, and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state and local law to the extent required by such agreement agreements in accordance with all applicable U.S. Requirements of Law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, ; provided that (1x) the no pledge of Excluded Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the and (y) no perfection actions specified in clause by “control” (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) except with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2certain debt instruments) shall be treated as voting stock for purposes required to be taken. For the avoidance of this Section 6.11(b)doubt, the Credit Parties shall be under no obligation to deliver any leasehold mortgages, landlord waivers or collateral access agreements.
(c) Promptly Upon the acquisition of any new Material Property:
(i) within fifteen (15) Business Days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall furnish to the Collateral Agent a description of such Material Property in detail reasonably satisfactory to the Collateral Agent; and
(ii) within ninety (90) days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall grant to the Collateral Agent, within 60 days of the acquisition thereof, Agent a security interest in such Material Property and mortgage deliver a mortgage, deed of trust or deed to secure debt in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless which, if reasonably requested by the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages Administrative Agent, shall be granted pursuant to documentation reasonably satisfactory in form accompanied by a customary legal opinion) and substance deliver to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyAgent, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Credit Party about special flood hazard area status, if applicable, in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 5 contracts
Samples: Credit Agreement (iCIMS Holding LLC), Assumption Agreement and Amendment No. 2 (iCIMS Holding LLC), Assumption Agreement and Amendment No. 1 (iCIMS Holding LLC)
Additional Collateral; Additional Guarantors. Upon (ax) Subject to this Section 6.11 and Section 6.13(b)the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, with respect to any property acquired after the Closing Date formation or acquisition by any Loan Credit Party that is intended or any of its Restricted Subsidiaries of any new direct or indirect Subsidiary (in each case, other than an Excluded Subsidiary) or upon any Subsidiary ceasing to be an Excluded Subsidiary, or (y) the acquisition of any personal property by any Credit Party (other than Excluded Assets) not already subject to the a perfected First Priority Lien created by any in favor of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, the Initial Borrower shall, in each case, at the Borrowers’ expense, promptly, within thirty (30) Business Days, or such longer period as determined in writing by Administrative Agent in its sole discretion from time to time, after such formation, acquisition, cessation or re-designation, cause (i) such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so) to become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement and/or (ii) such personal property not subject to a perfected First Priority Lien on to become subject to a First Priority Lien in favor of Collateral Agent (except to the extent constituting Excluded Assets or this Agreement or the Pledge and Security Agreement does not require that such property be subject to no Liens a perfected First Priority Lien), and in furtherance of the foregoing, take all such actions and execute and deliver, or cause to be executed and delivered, supplements to any applicable Subordination Agreement, pledges, assignments, joinders to any intercreditor agreements, any amendments, joinders and/or supplements to the Collateral Documents and any other than Liens permitted hereunderdocuments, instruments, agreements, and certificates as are similar to those described in Sections 3.01(d), 3.01(g), 3.01(j), and 5.11 (but only to the extent reasonably required by Administrative Agent and subject to such additional time periods as Administrative Agent may consent to) or as otherwise reasonably requested by any Agent; provided, that the pledge of the Capital Stock of any Domestic Holding Company or Foreign Subsidiary shall be limited to 65% of the voting Capital Stock and 100% of the non-voting Capital Stock in each such Domestic Holding Company or Foreign Subsidiary. Additionally, after such formation, acquisition, cessation or re-designation, the Borrower Representative shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of a Credit Party, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed data required to be set forth in Schedules 4.01 and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, 4.02 with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor all Subsidiaries of the Collateral Agent on behalf of the Secured Parties and (ii) cause any Credit Parties; provided, such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary written notice shall be required deemed to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of supplement Schedule 4.01 and 4.02 for all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)hereof.
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.), Credit and Guaranty Agreement (Priority Technology Holdings, Inc.), Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property Property acquired after the Original Closing Date by Borrower or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Property described in paragraph (b) of this subsection) promptly (and in any event within 60 30 days after the acquisition thereof) thereof provided Collateral Agent has provided all joinder agreements to the applicable Security Documents necessary for the Loan Parties to comply herewith): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property Property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and Collateral Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such reasonable documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Wholly Owned Subsidiary (regardless of whether such Subsidiary is established, created or acquired) (other than any Foreign Subsidiary that is an Immaterial First-Tier Foreign Subsidiary and any Foreign Subsidiary not a direct Subsidiary of a Loan Party after the Closing Date, Party) promptly (and in any event within 60 30 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by (provided, that with respect to any Foreign Subsidiary subject to the provisions of this subsection (b), in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Security Document if the pledge of more than such Loan Party65% would have a material adverse tax impact on Borrower (determined at the reasonable judgment of the Administrative Agent after consultation with Borrower)), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary subject to the provisions of this subsection (b) if a guarantee by such Foreign Subsidiary of and/or the granting of liens by such Foreign Subsidiary to secure the obligations of Borrower or any other Loan Party would have a material adverse tax impact on Borrower (determined at the reasonable judgment of the Administrative Agent after consultation with Borrower)) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Security Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction thereto which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including Security Agreements in the Security Agreement) property and assets of such Subsidiary to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, .
(1c) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include If at any Equity Interests of a time any Foreign Subsidiary that would otherwise be subject to the provisions of Section 5.11(b) above but which is excluded from Section 5.11(b) because it has been previously designated as an Excluded Immaterial First-Tier Foreign Subsidiary by reason of clauses ceases to be an Immaterial First-Tier Foreign Subsidiary, the Loan Parties shall and shall cause such Foreign Subsidiary to promptly (band in any event within 30 days after such Foreign Person ceases to be an Immaterial First-Tier Foreign Subsidiary) comply with Section 5.11(b), .
(d), (f) Notwithstanding anything to the contrary provided for in Section 5.11(b) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary otherwise in this Agreement, Loan Parties shall not be required to take (and shall not be required to cause any Foreign Subsidiary to) comply with the actions specified in clause (ii) provisions of this Section 6.11(b); provided that the exception set forth in clause (15.11(b) with respect to any Foreign Subsidiary if the local laws of the jurisdiction where such Foreign Subsidiary is formed or incorporated would prohibit the pledge of the Equity Interests of a such Foreign Subsidiary that is an Excluded or the granting of a guarantee or Liens by such Foreign Subsidiary by reason to secure Obligations or would impose any materially adverse or materially onerous restrictions or requirements on such Foreign Subsidiary, Borrower or any other Loan Party as a result of clause such pledge or the granting of such guarantees or liens (g) as determined at the reasonable judgment of the definition Administrative Agent after consultation with Borrower), provided that, if any time the circumstances and/or laws of Excluded the applicable foreign jurisdiction change such that such a pledge and/or guarantee and/or granting of Liens would no longer be subject to such a prohibition or restrictions or requirements, then, subject to all the other provisions of and exceptions to Section 5.11(b), the Loan Parties shall and shall cause such Foreign Subsidiary to promptly (and in any event within thirty (30) days after Borrower and Administrative Agent become aware of such change in circumstances or applicable foreign laws) comply with Section 5.11(b). The parties hereto acknowledge that, as of the Closing Date, the provisions of this sentence shall not paragraph (d) apply to PD South Africa.
(Ae) voting stock Notwithstanding anything to the contrary provided for herein or in any other Loan Document, until the close of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) the tender offer with respect to the shares of PD Zambia Metal Fabricators being conducted as part of the Code) representing Closing Date Acquisition Transactions and at all times thereafter if PD Africa holds more than 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests of PD Zambia Metal Fabricators as a result of such tender offer, PD Africa shall not constituting voting stock be obligated to be a party to this Agreement, the Security Agreements or any other Loan Document or to otherwise give a guarantee of or grant any such SubsidiaryLiens to secure the Obligations, except that any such and Borrower shall not be required to pledge more than 65% of the Equity Interests constituting “stock entitled of PD Africa, provided that, if PD Africa holds less than 65% of the Equity Interests of PD Zambia Metal Fabricators as a result of such tender offer or if at any time thereafter, PD Africa engages in any trade or business or acquires any assets other the Equity Interest in PD Zambia Metal Fabricators the Loan Parties shall and shall cause PD Africa to vote” promptly (and in any event within thirty (30) days after any of the meaning of Treasury Regulation events described in this proviso have occurred) comply with Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b5.11(b)...
(cf) Promptly Each Loan Party will promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage Lien on each parcel of owned or leased Real Property owned in fee by of such Loan Party as is acquired by such Loan Party after the Original Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, as additional security for the Obligations (unless the subject property Property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderreasonably acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/), Credit Agreement (General Cable Corp /De/)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)8.15, with respect to any property acquired after the First Closing Date by any Loan Borrower Party that is intended to be not already subject to the Lien created by any of the Collateral Loan Documents but is not so subjector specifically excluded from the requirement to be subject to such Lien in the Loan Documents, such Borrower Party shall promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent Lender such amendments or supplements to the relevant Collateral Loan Documents or such other documents as the Administrative Agent or the Collateral Agent Lender shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Partiesbenefit, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative AgentLender. The Borrowers Each Borrower Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties. Notwithstanding any other provision in any Loan Document, (i) no Borrower Party shall be required to take any actions outside of the U.S. to perfect any Lien or security interest in any assets which are located outside of the U.S. and (ii) no equity interests in (a) CFCs or (b) Domestic CFC Holdcos shall be required to be pledged, other than 65% of the voting and 100% of non-voting equity interests in first-tier Foreign Subsidiaries that are CFCs or Domestic CFC Holdcos, as applicable.
(b) With respect to any Person Person, other than a Domestic CFC Holdco, that is or becomes a direct domestic Subsidiary of a Loan Borrower or any other Borrower Party after the Closing Date, such Borrower Party shall promptly (and in any event within 60 30 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent Lender the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes Intercompany Notes owing from such Subsidiary to any Loan Borrower Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Borrower Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)Document, substantially in the form annexed thereto, or, in the case of (B) to deliver a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, Perfection Certificate and (BC) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent Lender to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement in accordance with all applicable requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Lender.
(c) Promptly Each Borrower Party shall promptly grant to the Collateral AgentLender, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property real property owned in fee by such Loan Borrower Party as that is acquired by such Loan Borrower Party after the First Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations 500,000, (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 9.03). Such Mortgages mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent Lender and shall constitute valid and enforceable (subject to bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally or general equitable principles (regardless of whether enforcement is sought in equity or at Law)) perfected Liens subject only to Permitted Liens permitted hereunderor other Liens acceptable to the Lender. The Mortgages mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Lender required to be granted pursuant to the Mortgages mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Borrower Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage mortgage or new Mortgage mortgage against such after-acquired Real Property real property (including a Title Policytitle policy, a Survey survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral AgentLender) in respect of such Mortgagemortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Loan Agreement (Invuity, Inc.), Loan Agreement (Invuity, Inc.), Loan Agreement (Invuity, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property assets acquired after the Closing Date by any Loan Credit Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is which are not so subjectsubject (but, in any event, excluding any assets described in paragraph (b) of this subsection), promptly (and in any event within 60 45 days after the acquisition thereof) ): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person person that is or becomes a Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, or a Non-Guarantor Subsidiary) promptly (and in any event within 60 45 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such (provided that with respect to any Foreign Subsidiary of Borrower, in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Loan PartyDocument), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer duly executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary or a Non-Guarantor Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Each Credit Party will promptly grant to the Collateral Agent, within 60 days 180 Business Days of the acquisition thereof, a security interest interests and Mortgages in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of such owned or leased Real Property owned in fee by of such Loan Credit Party as is acquired by such Loan Credit Party after the Closing Date and that, together with any improvements thereonthereon in the case of any such owned Real Property, individually has a fair market value of at least $15 5.0 million, and in the case of any such leased real property, has rental obligations of at least $1.0 million per year and a term of at least three years, as additional security for the Obligations (unless the subject unless, with respect to any such property, (x) such property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 or (y) the Administrative Agent determines, in its reasonable discretion, that the fees and expenses of obtaining a Mortgage with respect to such property and the other related deliveries required by this Section 5.11 would be disproportionate to the expected benefits to be received by the Secured Parties). Such Mortgages In connection with the foregoing, the Collateral Agent shall have received:
(A) Mortgage encumbering each Mortgaged Real Property in favor of Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by the Credit Party that is the owner of or holder of a possessory interest in such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be granted pursuant required in connection with the recording or filing thereof to documentation reasonably satisfactory create a Lien under applicable law, and such UCC-1 Financing Statements, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, and any other instruments necessary to grant a mortgage lien under the Administrative Agent and laws of any applicable jurisdiction;
(B) with respect to each leasehold Mortgaged Real Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Collateral Agent in order for the owner of the fee interest therein to consent to or approve of the Lien contemplated by the Mortgage with respect to such leasehold Mortgaged Real Property, and as may be obtained by the owner of such leasehold interest constituting such leasehold Mortgaged Real Property using commercially reasonable efforts, and to the extent such Credit Party, after using commercially reasonable efforts, is unable to obtain such consent or approval, such Credit Party shall constitute not be obligated to deliver such Mortgage;
(C) with respect to each Mortgage, a policy (or commitment to issue a policy) of title insurance insuring (or committing to insure) the Lien of such Mortgage as a valid first mortgage Lien on the Real Property and enforceable perfected fixtures described therein in an amount reasonably requested by the Collateral Agent, but not to exceed 100% of the fair market value of such Real Property which policies (or commitments) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement (if available under applicable law), (D) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, and (E) contain no exceptions to title other than exceptions for the Permitted Collateral Liens subject only applicable to Liens permitted hereundersuch Mortgaged Real Property and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements);
(D) with respect to each Mortgaged Real Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be reasonably required to induce the Title Company to issue the Title Policies and endorsements contemplated in subparagraph (iii) above;
(E) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to in subparagraph (iii) above;
(F) with respect to each Mortgaged Real Property, copies of all leases in which any Group Company holds the lessor’s interest or other agreements relating to possessory interests of any Group Company, if any. To the extent any of the foregoing encumber any Mortgaged Real Property, such agreement shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement;
(G) with respect to each Mortgaged Real Property, each Group Company shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Real Property, including the use of forms provided by state or local agencies, where such forms exist, whether to Borrower or to or with the state or local agency;
(H) with respect to each Mortgaged Real Property, a legal opinion from counsel licensed in the state in which the Mortgaged Real Property is located in form and substance reasonably satisfactory to Collateral Agent; and
(I) a Survey of any such Mortgaged Real Property. The Mortgages or and instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges due and payable in connection therewith shall be paid in full. Such Loan Credit Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory within 90 days after prompt notice of the acquisition of such after-acquired Real Property is provided to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof (or such later date as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, ; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Wholly-Owned Subsidiary of a Loan Party after the Closing DateDate or that is a Wholly-Owned Subsidiary that ceases to be an Excluded Subsidiary, promptly (and in any event within 60 thirty (30) days after the later of (I) the date such Person becomes a SubsidiaryWholly-Owned Subsidiary or (II) the date Parent delivers to the Administrative Agent financial statements by which it is determined that such Person ceased to be an Excluded Subsidiary (or such later date as the Administrative Agent may agree)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly-Owned Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(sholder (or holders) of such Equity Interests, and all intercompany notes owing from such Wholly-Owned Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Wholly-Owned Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all other actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (ge) of the definition of Excluded Subsidiary and Subsidiary, (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause , (13) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to no more than (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged, and (4) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged.
(c) Promptly Each Loan Party shall grant to the Collateral Agent, within 60 ninety (90) days of the acquisition thereofthereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as that is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value (as determined in good faith by Parent) in excess of at least $15 5 million (with fair market value determined as of the date of acquisition thereof and without regard to third party advertising revenue derived from any improvements on such property that are made after the date of acquisition thereof), as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, to the extent so required, a Title Policy, a Survey and Survey, local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage). The Borrowers will provide at least forty-five (45) days prior written notice to the Administrative Agent prior to any Mortgage being delivered pursuant to this clause (c) in order to allow the Lenders to complete relevant flood insurance due diligence and related internal requirements. For the avoidance of doubt, (i) no Mortgage shall be required on any Real Property owned by any Loan Party on the Closing Date (each a “Closing Date Property”) and (ii) any Mortgage on a Closing Date Property that was granted in favor of the Collateral Agent at any time prior to the Amendment No. 2 Effective Date shall be released on or shortly after the Amendment No. 2 Effective Date.
(d) The foregoing clauses (a) through (c) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative AgentAgent and Parent in writing, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or therefrom; (ii) such asset constitutes an “Excluded Asset” (as such term is defined in the creation Security Agreement); or perfection of (iii) such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets)asset constitutes intercompany Indebtedness between Loan Parties. In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) ); or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersParent, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and XxxxxxxParent. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company Parent that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b6.13(d), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof (or, with respect to intellectual property, in any event on a quarterly basis) (or such later date as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, Permitted Liens; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate or ceases to be an Excluded Subsidiary, promptly (and in any event within 60 thirty (30) days after the later of (I) the date such Person becomes a SubsidiarySubsidiary or (II) the date the Borrower delivers to the Administrative Agent financial statements by which it is determined that such Person ceased to be an Excluded Subsidiary (or such later date as the Administrative Agent may agree)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary directly owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(sholder (or holders) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all other actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses clause (b), (d), (f) or (ge) of the definition of Excluded Subsidiary and Subsidiary, (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause , (13) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to no more than (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged and (4) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged.
(c) Promptly Each Loan Party shall grant to the Collateral Agent, within 60 ninety (90) days of the acquisition thereofthereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 5 million as additional security for the Obligations (unless the subject property is already mortgaged subject to a third party Lien pursuant to the extent permitted hereunderSection 7.01(6)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, to the extent so required, a Title Policy, a Survey and Survey, local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) ), a Phase I environmental assessment, and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage), and, if reasonably requested by the Administrative Agent or the Collateral Agent, an appraisal (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) with respect to such Real Property.
(d) The foregoing clauses (a) through (c) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance a Title Policy or surveys Survey with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative AgentAgent and the Borrower in writing, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance a Title Policy or surveys Survey in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) such asset constitutes an Excluded Asset (as such term is defined in the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsSecurity Agreement). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) ); or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersBorrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxxthe Borrower. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company Borrower that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessthe Senior Notes.
Appears in 3 contracts
Samples: Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Corp)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof provided that the Administrative Agent may agree to an extension thereof in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Restricted Subsidiary after the Closing Date (other than (x) an Excluded Collateral Subsidiary and (y) a Securitization Entity) or any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Loan Party after by operation of the Closing Dateprovisions of Section 5.11(d), promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiaryRestricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d) provided that the Administrative Agent may agree to an extension of such time period in its sole discretion) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Restricted Subsidiary that is a Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement agreements to the applicable Collateral Security Documents (including the Security Agreement)in each case, substantially in the form annexed thereto, thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute a security agreement such other Security Documents (or joinder agreements) to the extent possible under and compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien Liens created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(bparagraph (b) shall not include any apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any applicable Requirement of Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Foreign Lien on such Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary that is an Excluded a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary by reason of clauses (bbut only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), (d)y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (f) or (g) other than any of the definition foregoing entered into with any Company or Affiliate of Excluded any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause paragraph (1b) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Aany Company listed on Schedule 5.11(b) voting stock to the extent any applicable Requirement of any Subsidiary that is Law prohibits it from becoming a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Loan Party.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15 million as additional security for the Obligations 10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid valid, perfected and enforceable perfected First Priority Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) The foregoing shall If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) Loan Parties because they are Excluded Collateral Subsidiaries comprise in the reasonable judgment aggregate more than 7.5% of the Administrative AgentConsolidated Total Assets of the Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the cost of creating Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement, cause one or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be excessive in view true. The Borrower may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the benefits Borrower on the Closing Date as an Excluded Collateral Subsidiary subject to be obtained by the Lenders therefrom or (ii) terms of the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granteddefinition thereof, in which case event the Borrowers Guarantee by such Restricted Subsidiary shall use their commercially reasonable efforts to obtain such approval, unless be released in accordance with Section 7.09 and the Administrative Collateral Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or release the Collateral Documentspledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(f) Notwithstanding the foregoing provisions any other provision of this Section 6.11 or anything in this Agreement or any other Loan Document 5.11 to the contrary, Liens required in no event shall this Section 5.11 obligate any Loan Party to be granted from time xxxxx x Xxxx to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or on any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessExcluded Property.
Appears in 3 contracts
Samples: Refinancing Amendment Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 5.11 and Section 6.13(bexcept to the extent the Administrative Agent (after consultation with Borrower) determines that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of Borrower or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any property assets acquired after the Closing Date by Borrower or any other Loan Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is that are not so subject, and with respect to any assets held by Borrower or any other Loan Party on the Closing Date not made subject to a Lien created by any of the Security Documents but of a type intended to be subject to the Lien created by the applicable Security Documents (but, in any event, excluding any assets described in Section 5.11(b)), promptly (and in any event within 60 days after the acquisition thereof) thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets, subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Collateral Agent. The Borrowers Borrower or any such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets, and such assets held on the Closing Date not made subject to a Lien created by any of the Security Documents.
(b) With To the extent the Administrative Agent (after consultation with Borrower) determines that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of Borrower or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party becomes, after the Closing Date, promptly a Wholly Owned Subsidiary directly owned by a Loan Party and organized under the laws of the United States, Cayman Islands, Luxembourg, England and Wales, Japan, Mexico, Switzerland or a political subdivision of any thereof (a “New Wholly Owned Subsidiary”), promptly, and in any event within no later than 60 days after each such Person person becomes a New Wholly Owned Subsidiary) , cause such Subsidiary (i) to become a Guarantor and deliver to the Collateral Agent the certificates, if any, certificates representing all of the Equity Interests of such Subsidiary owned by (provided, that, in no event shall the stock of any such Loan PartySubsidiary be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the case may be, and all Intercompany Notes owing from such Subsidiary to any Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties Party; and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)documentation, substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the each Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Collateral Agent or the Collateral Agent. Notwithstanding the foregoing(provided, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) that any such Subsidiary shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in comply with clause (iiii)(A) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) above if satisfying such requirements is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law).
(c) Notwithstanding anything to the contrary contained herein, in the case of any (x) New Wholly Owned Subsidiary that has not previously become (and, if so, does not remain) a Guarantor or (y) other Non-Guarantor Subsidiary directly owned by a Loan Party, 66% of the Equity Interests of any such Subsidiary (and 100% of the Equity Interests not constituting voting stock of any such Domesticated Foreign Subsidiary) (exclusive, except that however, of Herbalife China LLC, Herbalife Del Ecuador, S.A., Herbalife International Products, N.V. or any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2Immaterial Subsidiary) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party Lien or be required to be pledged under the applicable Loan Document (except to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, after consultation with Borrower, determines that such Lien or pledge is not commercially reasonable (taking into account the cost expense, including taxes, of creating obtaining the same, the ability of Borrower or perfecting such pledges Subsidiary to obtain any necessary approvals or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits consents required to be obtained by under applicable law in connection therewith, and the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or effectiveness and enforceability thereof under applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be grantedlaw)); and, in which case the Borrowers any event, no Loan Party shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or deliver any other supplemental Loan Document to give effect to this clause (c) that is governed by any law other than the contrarylaws of the United States, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions Cayman Islands, Luxembourg, England and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date andWales, to the extent appropriate in the applicable jurisdictionJapan, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement Mexico, Switzerland or any other Loan Document to the contrary, political subdivision of any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessthereof).
Appears in 3 contracts
Samples: Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.), Credit Agreement (Herbalife Ltd.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 4.21 and Section 6.13(bthe provisions of the Security Agreement (and subject to the terms hereof and thereof (including any exceptions, limitations and time periods provided therein)), with respect to any property Property (excluding Real Property and Excluded Property) acquired after the Closing Date Date, by any Loan Credit Party that constitutes Collateral or is otherwise intended to be subject to the Lien created by any of the Collateral Security Documents (other than Excluded Property) but is not so subjectsubject or with respect to any Property previously designated as Excluded Property (but is no longer designated as Excluded Property), promptly (and in any event within 60 days after the acquisition thereof) each Credit Party shall (i) execute and deliver to the Administrative Agent and the Collateral Agent Trustee such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem are necessary or advisable to grant to the Collateral AgentTrustee, for its benefit and for the benefit of the other Secured Parties, a Lien Acceptable Security Interest on such property subject to no Liens other than Liens permitted hereunderProperty, and (ii) to the extent not already created and/or perfected, take all commercially reasonable actions necessary to cause such Lien Property to be duly subject to an Acceptable Security Interest and not already perfected to the extent required by such Collateral Document in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by all necessary filing offices, in each case, in accordance with the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to time frames required under the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired propertiesSecurity Agreement.
(b) With respect [Reserved]
(c) Each Credit Party (i) shall grant to any Person that the Collateral Trustee, within sixty (60) days (or such longer period approved by the Requisite Holders in their reasonable discretion or the Collateral Trustee (acting at the direction of the Requisite Holders in their reasonable discretion)) of the acquisition thereof, an Acceptable Security Interest in and Mortgage encumbering each Real Property valued at least $1,000,000 owned in fee by such Credit Party as is or becomes a direct Subsidiary of a Loan acquired by such Credit Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary at the Collateral Trustee’s direction (A) to execute a joinder agreement reasonably acceptable to at the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor direction and a joinder agreement to reasonable discretion of the applicable Collateral Documents (including the Security AgreementRequisite Holders), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory shall use commercially reasonable efforts to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral AgentTrustee, within 60 sixty (60) days (or such longer period approved by the Requisite Holders in their reasonable discretion or the Collateral Trustee (acting at the direction of the Requisite Holders in their reasonable discretion)) of the acquisition thereof, a security interest an Acceptable Security Interest in and mortgage in a form reasonably satisfactory Mortgage encumbering each leased Real Property (where the term of such lease is at least 7 years (including any options to extend)) and the operations ongoing at such site are integral to the Administrative Agent Credit Parties’ business and Collateral Agent primarily involve manufacturing and processing operations (a “Mortgage”with the exception of locations used solely as the Credit Parties’ headquarters, office locations, or for storage or warehousing) on of such Credit Party, in each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and thatcase, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderObligations. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the respective Liens in favor of the Collateral Agent Trustee required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in fullMortgages. Such Loan Credit Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Trustee such documents as the Administrative Agent Collateral Trustee (acting at the direction of the Requisite Holders) or the Collateral Agent Requisite Holders shall reasonably require to confirm the validity, perfection and priority of the Lien Liens of any existing Mortgage Mortgages or such new Mortgage Mortgages against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)Property.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Indenture (Gevo, Inc.), Exchange and Purchase Agreement (Gevo, Inc.), Exchange and Purchase Agreement (Gevo, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Date by Borrower or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any property described in Section 5.10(b)) promptly (and in any event within 60 30 days after the acquisition thereof) ): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary's parent, as the holder(s) of such Equity Interests, case may be; and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially Agreement in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.10(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.10(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger an increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined in good faith by the Board of Directors of Borrower; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.10(b).
(c) Promptly Each Loan Party will promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2,000,000, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $2,000,000, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp), Credit Agreement (Norcraft Companies Lp)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)6.12, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and within 15 Business Days following the end of the Fiscal Quarter in any event within 60 days after the which such acquisition thereof) occurs (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderpursuant to Section 7.1, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and within 15 Business Days following the end of the Fiscal Quarter in any event within 60 days after which such Person becomes a Subsidiary) Subsidiary (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, (B) to execute a Business Associate Agreement and (BC) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (x)
(1) the Equity Interests Capital Stock required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b6.12(b) shall not include any Equity Interests Capital Stock of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in sub-clauses (A) and (C) of clause (ii) of this Section 6.11(b6.12(b); provided that the this exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Interests of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Interests of such Subsidiary and (B) 100% of the Equity Interests Capital Stock not constituting voting stock Voting Interests of any such Subsidiary, except that any such Equity Interests Capital Stock constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Interests for purposes of this Section 6.11(b6.12(b) and (y) no Subsidiary of the Borrower will be required to become a Guarantor and to comply with this Section 6.12(b) if the Loan Parties would be in compliance with Section 7.12 notwithstanding such Subsidiary’s failure (and the failure of any other Subsidiaries) to comply with this Section 6.12(b). Notwithstanding the foregoing and notwithstanding Section 7.12, if any Subsidiary that is not a Guarantor is a guarantor of or shall guarantee Debt of a Loan Party or Debt of a Loan Party is or shall otherwise become a Contingent Obligation of any Subsidiary that is not a Guarantor, such Subsidiary shall become a Guarantor hereunder and comply with Section 6.12 and Section 6.13 and all other applicable provisions hereof.
(c) Promptly Other than with respect to the Denver Headquarters, promptly grant to the Collateral Agent, within 60 days 15 Business Days of the end of the Fiscal Quarter in which the acquisition thereofthereof occurred, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 10.0 million as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.1). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderby Section 7.1, or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle insurance policy, a Survey Survey, a life of loan flood hazard determination (together with a notice regarding the special flood hazard area status and flood disaster assistance with respect to such after-acquired Real Property executed by the Borrower) and a local counsel opinion (each in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (Davita Inc), Credit Agreement (Davita Inc), Credit Agreement (Davita Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 The Parent shall, and Section 6.13(b)shall cause each other Debtor to, with respect to any property acquired after guarantee the Closing Date by any Loan Party that is intended to be subject Obligations pursuant to the Lien created by Loan Guarantee. In connection with any of such guarantee, the Collateral Documents but is not so subjectParent shall, promptly or shall cause such Debtor to promptly, (and in any event within 60 days after the acquisition thereof) (iA) execute and deliver this Agreement or a joinder to this Agreement, in form and substance reasonably acceptable to the Administrative Agent and (the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder“Joinder Agreement”), and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral any other Loan Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(bB) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing pledge all of the Equity Interests of such Subsidiary owned by Debtor pursuant to a Security Instrument or other Loan Document (including, without limitation, delivery of original stock certificates, if any, evidencing the Equity Interests of such Loan PartyDebtor, together with appropriate undated stock powers or other appropriate instruments of transfer for each certificate duly executed and delivered in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Agent.
(b) Notwithstanding the restrictions in Section 9.06, each Subsidiary of a duly authorized officer of Loan Party now existing or created, acquired or coming into existence after the holder(sdate hereof, other than the Guarantors party hereto, shall promptly execute and deliver to the Agent a Joinder Agreement and any Security Instrument or other Loan Document (or joinder thereto) as may be required by the Agent. Such Subsidiary shall, and the Parent shall cause such Subsidiary to, deliver to the Agent, simultaneously with its delivery of such Equity Interests, Joinder Agreement and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary Security Instrument or other Loan Document (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreementjoinder), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance (x) written evidence reasonably satisfactory to the Administrative AgentAgent that such Subsidiary has taken all organizational action necessary to duly approve and authorize its execution, delivery and performance of such Joinder Agreement (including under the Loan Guarantee), any such Security Instrument and any other documents which it is required to execute, and (By) to take all actions necessary or advisable in the opinion such additional closing documents, certificates and opinions of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents counsel as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)require.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Restructuring Support and Lock Up Agreement (Legacy Reserves Inc.), Credit Agreement (Legacy Reserves Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)8.14, with respect to any property acquired after the Closing Date by any Loan Borrower Party that is intended to be not already subject to the Lien created by any of the Collateral Loan Documents but is not so subjector specifically excluded from the requirement to be subject to such Lien in the Loan Documents, such Borrower Party shall promptly (and in any event within 60 days [*****] after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent Lender such amendments or supplements to the relevant Collateral Loan Documents or such other documents as the Administrative Agent or the Collateral Agent Lender shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Partiesbenefit, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative AgentLender. The Borrowers Each Borrower Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties. Notwithstanding any other provision in any Loan Document, (i) no Borrower Party shall be required to take any actions outside of the United States to perfect any Lien or security interest in any assets which are located outside of the United States of America and (ii) no equity interests in (a) Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957 of the Code ("CFCs") or (b) domestic Subsidiaries that have no material assets other than equity in one or more Foreign Subsidiaries that are CFCs ("Domestic CFC Holdcos") shall be required to be pledged, other than 65% of the voting and 100% of non-voting equity interests in first-tier Foreign Subsidiaries that are CFCs or Domestic CFC Holdcos, as applicable. [*****] Raptor Pharmaceutical Corp. has requested confidential treatment of certain portions of this agreement which have been omitted and filed separately with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934.
(b) With respect to any Person that is or becomes a direct domestic Subsidiary of a Loan the Borrower or any other Borrower Party after the Closing Date, such Borrower Party shall promptly (and in any event within 60 days [*****] after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent Lender the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes owing from such Subsidiary to any Loan Borrower Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Borrower Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)Document, substantially in the form annexed thereto, or, in the case of (B) to deliver a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, Perfection Certificate and (BC) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent Lender to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement in accordance with all applicable requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Lender.
(c) Promptly Each Borrower Party shall promptly grant to the Collateral AgentLender, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property real property owned in fee by such Loan Borrower Party as that is acquired by such Loan Borrower Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations [*****], (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 9.03). Such Mortgages mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent Lender and shall constitute valid and enforceable (subject to bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors' rights generally or general equitable principles (regardless of whether enforcement is sought in equity or at Law)) perfected Liens subject only to Permitted Liens permitted hereunderor other Liens acceptable to the Lender. The Mortgages mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Lender required to be granted pursuant to the Mortgages mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Borrower Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage mortgage or new Mortgage mortgage against such after-acquired Real Property real property (including a Title Policytitle policy, a Survey survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral AgentLender) in respect of such Mortgagemortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp), Loan Agreement (Raptor Pharmaceutical Corp)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Closing Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 3 contracts
Samples: Credit Agreement (Nielsen Holdings B.V.), Credit Agreement (Nielsen Holdings B.V.), Credit Agreement (Global Media USA, LLC)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person, other than an Excluded Subsidiary, that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Borrower may designate any Subsidiary acquired or formed after the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long Closing Date as (i) in the reasonable judgment of a Non-Guarantor Subsidiary by written notice to the Administrative Agent; provided, however, that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the cost aggregate (other than any Excluded Subsidiary or Foreign Subsidiary that is not required to take the actions specified in Section 5.11(b)(ii) by operation of creating the last sentence of Section 5.11(b)) not otherwise subject to Section 5.11(b) has assets with either a book value or perfecting such pledges fair market value in excess of $1.0 million, then Borrower shall, and shall cause one or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall be excessive in view Subsidiaries to, comply with Section 5.11(b) within the time frames set forth therein so that no Non-Guarantor Subsidiary or group of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests Non-Guarantor Subsidiaries in the assets aggregate holds property having either a book value or fair market value in excess of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents$1.0 million.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Ventiv Health Inc), Credit Agreement (Inventiv Health Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)6.12, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and within 15 Business Days following the end of the Fiscal Quarter in any event within 60 days after the which such acquisition thereof) occurs (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderpursuant to Section 7.1, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and Date required to become a Guarantor in any event within 60 days after order for the Loan Parties to remain in compliance with Section 7.12 as of the end of the Fiscal Quarter in which such Person becomes a Subsidiary) , within 15 Business Days following the end of such Fiscal Quarter (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned to the extent held by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party that together with undated instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Party; provided that Capital Stock of Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests Subsidiaries required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply limited to (A) voting stock Voting Interests of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Interests of such Subsidiary and (B) 100% of the Equity Interests Capital Stock not constituting voting stock Voting Interests of any such Subsidiary, except that any such Equity Interests Capital Stock constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Interests for purposes of this Section 6.11(b)6.12(b) and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Guarantor and a joinder agreement to the applicable Security Agreement, substantially in the form annexed thereto, (B) to execute a Business Associate Agreement and (C) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent; provided that, if any Subsidiary that is not a Guarantor is a guarantor of or shall guarantee Debt of a Loan Party or Debt of a Loan Party is or shall otherwise become a Contingent Obligation of any Subsidiary that is not a Guarantor, such Subsidiary shall become a Guarantor hereunder and comply with Section 6.12 and Section 6.13 and all other applicable provisions hereof.
(c) Promptly Other than with respect to the Denver Headquarters, promptly grant to the Collateral Agent, within 60 days 15 Business Days of the end of the Fiscal Quarter in which the acquisition thereofthereof occurred, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 20.0 million as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.1). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderby Section 7.1, or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle insurance policy, a Survey Survey, a life of loan flood hazard determination (together with a notice regarding the special flood hazard area status and flood disaster assistance with respect to such after-acquired Real Property executed by the Borrower) and a local counsel opinion (each in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Davita Healthcare Partners Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to In the event that the Borrower or any property acquired after the Closing Date by any other Loan Party acquires or forms a Subsidiary that is intended to be subject to not designated as an Unrestricted Subsidiary or a Restricted Joint Venture in accordance with Section 8.17; the Lien created by any of the Collateral Documents but is not so subject, Borrower shall promptly (and in any event within 60 days after the acquisition thereof) (i) cause such Subsidiary to execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements a supplement to the relevant Guaranty and Collateral Documents or Agreement and such other documents Security Instruments (in proper form for filing, registration or recordation, as applicable) as are requested by the Administrative Agent or the Collateral Agent shall reasonably deem Agent, and take such actions necessary or advisable to grant to the Collateral Agent, for its benefit and Administrative Agent for the benefit of the other Secured PartiesParties a first priority, a perfected Lien (subject only to Excepted Liens and Liens permitted under Section 9.03(c)) on substantially all of the tangible and intangible Property of such property subject to no Liens Loan Party, other than Liens permitted hereunderExcluded Property, and (ii) take all commercially reasonable actions necessary cause the owner of the Equity Interests in such Subsidiary to pledge such Equity Interests (including, without limitation, delivery of original certificates evidencing the Equity Interests, if any, of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iii) cause such Lien Subsidiary or other pledgor to execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after The Borrower will at all times cause the Closing Dateother material tangible and intangible Property, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificatesother than Excluded Property, if any, representing all of the Equity Interests of such Subsidiary owned by such Borrower and each other Loan Party, together with undated stock powers including any real Property and Equity Interests in any Unrestricted Subsidiary or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interestsany Restricted Joint Venture, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each casecase to be subject to a Lien pursuant to the Security Instruments; provided, however, that, with respect to Foreign Subsidiariesany real Property, if the Administrative Agent determines in its sole discretion that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien, and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the extent applicable and permitted under foreign lawsSecured Parties of the security afforded thereby, rules or regulations) or, if necessary the Administrative Agent may elect not to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create be granted a Lien on such Equity Interests and intercompany notes real Property. Without limiting the foregoing, within thirty (30) days after (or such later date as agreed by the Administrative Agent in its sole discretion) the end of each calendar quarter during which any Loan Party receives copies of any recorded Deeds and/or Rights of Way in favor of the Collateral Agent on behalf any of the Secured Parties and (ii) Loan Parties, the Borrower shall, or shall cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents Loan Party to, (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws i) provide copies of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory recorded Deeds and/or Rights of Way to the Administrative Agent, and (Bii) deliver to take all actions necessary or advisable in the opinion of the Administrative Agent evidence or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form confirmation reasonably satisfactory to the Administrative Agent and Collateral Agent that (a “Mortgage”A) on each parcel of Real Property owned in fee by such Loan Party as maintains Flood Insurance for any Building or Manufactured (Mobile) Home to become Mortgaged Property of the type required by Section 8.07(b) or (B) such Building or Manufactured (Mobile) Home is acquired by such Loan Party after the Closing Date not located in a Special Flood Hazard Area, and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the iii) subject property is already mortgaged to a third party to the extent permitted hereunder). Such proviso in the immediately preceding sentence, execute and deliver Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in on such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens Deeds and/or Rights of Way in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (PennTex Midstream Partners, LP), Credit Agreement
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Third Amendment Effectiveness Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a Lien on such property subject to no other Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct U.S. Subsidiary of a Loan Party after the Closing Third Amendment Effectiveness Date, promptly (and in any event within 60 30 days after such Person person becomes a U.S. Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such U.S. Subsidiary owned by such Loan PartyParent or any of its Subsidiaries, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such U.S. Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new U.S. Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a U.S. Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the U.S. Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary (other than a Canadian Subsidiary), execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the U.S. Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.10(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Third Amendment Effectiveness Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.10(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a non de minimis increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.10(b).
(c) With respect to any person that is or becomes a Canadian Subsidiary after the Third Amendment Effectiveness Date, promptly (and in any event within 30 days after such person becomes a Canadian Subsidiary) (i) deliver to the Collateral Agent, a pledge agreement in a form reasonably satisfactory to the Collateral Agent, the certificates, if any, representing all of the Equity Interests of such Canadian Subsidiary owned by Canadian Borrower or a Canadian Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Canadian Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Canadian Subsidiary Guarantor and a joinder agreement to the Canadian Security Agreement, substantially in the form annexed thereto or, in the case of a Subsidiary not organized under the laws of Canada, execute a security agreement compatible with the laws of such Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by such security document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent.
(d) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such U.S. Loan Party as is acquired by such U.S. Loan Party after the Original Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such U.S. Loan Party which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such U.S. Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(de) The foregoing shall not require Promptly grant to the creation or perfection Collateral Agent, within 60 days of pledges of or the acquisition thereof, a security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if interest in and for so long as Mortgage creating a Lien on (i) each Real Property owned in fee by such Canadian Loan Party as is acquired by such Canadian Loan Party after the Original Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $1.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Canadian Loan Party which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Canadian Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (if available in the reasonable judgment of relevant jurisdiction), Survey and local counsel opinion (including as to title if a Title Policy is unavailable and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys ) in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsMortgage). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(ef) Notwithstanding The parties hereto agree that the foregoing provisions of this Section 6.11 5.10 (other than this Section 5.10(f)) shall not apply to Non-Guarantor Subsidiaries. Either Borrower may designate any of its Subsidiaries acquired or anything in this Agreement or any other Loan Document formed after the Third Amendment Effectiveness Date as a Non-Guarantor Subsidiary by written notice to the contraryAdministrative Agent; provided, Liens however, that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the aggregate (other than any Foreign Subsidiary that is not required to be granted from time to time pursuant take the actions specified in Section 5.10(b)(ii) by operation of the last sentence of Section 5.10(b)) not otherwise subject to Section 6.11 5.10(b) has assets with either a book value or fair market value in excess of $2.0 million, then such Borrower shall, and shall be subject to exceptions and limitations cause one or more of such Subsidiaries to, comply with Section 5.10(b) within the time frames set forth therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the Collateral Documents as aggregate holds property having either a book value or fair market value in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions excess of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness$2.0 million.
Appears in 2 contracts
Samples: Credit Agreement (Ply Gem Holdings Inc), Credit Agreement (Ply Gem Holdings Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired acquired, created or developed (including, without limitation, the filing of any application or registration or issuance of any Intellectual Property) after the Closing Effective Date by any Loan Party with a value in excess of $250,000 (individually or in the aggregate for all such property) that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent (or the Collateral Trustee, as the case may be) such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent (or the Collateral Trustee, as the case may be) shall reasonably deem necessary or advisable to grant to the Collateral AgentAgent (or the Collateral Trustee, as the case may be), for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Collateral Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or the Collateral Trustee, as the case may be) such documents as the Administrative Agent or the Collateral Agent (or the Collateral Trustee, as the case may be) shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties. The Loan Parties shall not be required to take any actions pursuant to this Section 5.10 if the Administrative Agent shall determine in the exercise of its reasonable discretion that the costs of obtaining Liens on any property as otherwise required by this Section 5.10 are excessive in relation to the value of such property. In addition, neither Korean Opco nor any Subsidiary described in Section 5.01(g) shall be required to affix a “fixed date stamp” to any notification sent to any account debtor (other than as contemplated by Section 5.01(g)).
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party either Borrower or Holdings after the Closing Effective Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) Subsidiary of either Borrower or Holdings)
(i) deliver to the Collateral Agent (or the Collateral Trustee, as the case may be) the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (to the extent permitted under applicable law) and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute (to the extent permitted by applicable law) a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral AgentAgent (or the Collateral Trustee, as the case may be), in each case to the extent permitted by applicable law, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Effective Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, and (ii) unless the Collateral Agent otherwise consents or such Mortgage cannot be obtained after the use of commercially reasonable efforts, each leased Real Property of such Loan Party, which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent (and, if applicable, the Collateral Trustee) and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (or the Collateral Trustee, as the case may be) required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or the Collateral Trustee, as the case may be) such documents as the Administrative Agent or the Collateral Agent (or the Collateral Trustee, as the case may be) shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle policy, if available in the opinion of the Administrative Agent on commercially reasonable terms, a Survey Survey, if customarily obtained in the jurisdiction where such Real Property is located and available in the opinion of the Administrative Agent on commercially reasonable terms, and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall Notwithstanding anything to the contrary set forth in this Section 5.10, Subsidiaries of Holdings that have assets having a fair value of less than $500,000 individually (but not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and to exceed $5,000,000 for so long as all such Subsidiaries covered by this clause (id)) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In additionbecome a Subsidiary Guarantor pursuant to the requirements of, or grant the foregoing will not require actions under liens and security interest contemplated by, this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents5.10.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrarycontrary herein or in any Loan Document, Liens no Loan Party shall be required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 deliver control agreements over deposit accounts or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednesssecurities accounts.
Appears in 2 contracts
Samples: Credit Agreement (Magnachip Semiconductor LLC), Credit Agreement (Magnachip Semiconductor LLC)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property assets acquired after the Closing Date by any Loan Credit Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is which are not so subjectsubject (but, in any event, excluding any assets described in paragraph (b) of this subsection), promptly (and in any event within 60 45 days after the acquisition thereof) ): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, or a Non-Guarantor Subsidiary) promptly (and in any event within 60 45 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such (provided that with respect to any Foreign Subsidiary of Borrower, in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Loan PartyDocument), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer duly executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary or a Non-Guarantor Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly (i) Each Credit Party will promptly grant to the Collateral Agent, within 60 days 180 Business Days of the acquisition thereof, a security interest interests and Mortgages in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of such owned or leased Real Property owned in fee by of such Loan Credit Party as is acquired by such Loan Credit Party after the Closing Date and that, together with any improvements thereon, in the case of any such owned or leased Real Property, individually or in the aggregate has a fair market value of at least $15 million 5.0 million, as additional security for the Obligations (unless the subject unless, with respect to any such property, (x) such property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 or (y) the Administrative Agent determines, in its reasonable discretion, that the fees and expenses of obtaining a Mortgage with respect to such property and the other related deliveries required by this Section 5.11 would be disproportionate to the expected benefits to be received by the Secured Parties) and (ii) in the event the San Xxxxxx Agreement is terminated or the sale of the San Xxxxxx Facility is not otherwise consummated prior to March 31, 2007, Holdings will promptly grant to the Collateral Agent, within 30 days of March 31, 2007 (or, if earlier, the date of termination of the San Xxxxxx Agreement), security interests and a Mortgage in the San Xxxxxx Facility. Such Mortgages In connection with either clause (i) or (ii) above, the Collateral Agent shall have received:
(A) a Mortgage encumbering each Mortgaged Real Property in favor of Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by the Credit Party that is the owner of or holder of a possessory interest in such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be granted pursuant required in connection with the recording or filing thereof to documentation reasonably satisfactory create a Lien under applicable law, and such UCC-1 Financing Statements, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, and any other instruments necessary to grant a mortgage lien under the Administrative Agent and laws of any applicable jurisdiction;
(B) with respect to each leasehold Mortgaged Real Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Collateral Agent in order for the owner of the fee interest therein to consent to or approve of the Lien contemplated by the Mortgage with respect to such leasehold Mortgaged Real Property, and as may be obtained by the owner of such leasehold interest constituting such leasehold Mortgaged Real Property using commercially reasonable efforts;
(C) with respect to each Mortgage, a Title Policy shall constitute valid (A) be issued by the Title Company, (B) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement (if available under applicable law), (D) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, and enforceable perfected (E) contain no exceptions to title other than exceptions for the Permitted Liens subject only applicable to Liens permitted hereundersuch Mortgaged Real Property and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements);
(D) with respect to each Mortgaged Real Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be reasonably required to induce the Title Company to issue the Title Policies and endorsements contemplated in subparagraph (iii) above;
(E) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to in subparagraph (iii) above;
(F) with respect to each Mortgaged Real Property, copies of all leases in which any Group Company holds the lessor’s interest or other agreements relating to possessory interests of any Group Company, if any. To the extent any of the foregoing encumber any Mortgaged Real Property, such agreement shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement;
(G) with respect to each Mortgaged Real Property, each Group Company shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Real Property, including the use of forms provided by state or local agencies, where such forms exist, whether to Borrower or to or with the state or local agency;
(H) with respect to each Mortgaged Real Property, a legal opinion from counsel licensed in the state in which the Mortgaged Real Property is located in form and substance reasonably satisfactory to Collateral Agent; and
(I) a Survey of any such Mortgaged Real Property. The Mortgages or and instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges due and payable in connection therewith shall be paid in full. Such Loan Credit Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory within 60 days after prompt notice of the acquisition of such after-acquired Real Property is provided to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to In the event that the Borrower or any property acquired after the Closing Date by any Loan Party Subsidiary acquires or forms a subsidiary that is intended not designated as an Excluded Subsidiary in accordance with Section 8.15, or if the Borrower or any other Subsidiary causes any Subsidiary to be subject to guarantee the Lien created by any of Term Loan Facility, the Collateral Documents Borrower or its Subsidiary shall promptly, but is not so subject, promptly (and in any event within 60 30 days after (or such later date as the acquisition thereof) Administrative Agent may agree in its sole discretion), cause such Subsidiary to guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with any guaranty, the Borrower shall, or shall cause such Subsidiary to, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements a supplement to the relevant Guaranty and Collateral Documents or Agreement and such other documents Security Instruments (in proper form for filing, registration or recordation, as applicable) as are requested by the Administrative Agent or the Collateral Agent shall reasonably deem Agent, and take such actions necessary or advisable to grant to the Collateral Agent, for its benefit and Administrative Agent for the benefit of the other Secured PartiesParties a first priority, a perfected Lien (subject only to Excepted Liens and Liens permitted under Section 9.03(h)) on all of the tangible and intangible Property of such property subject to no Liens Subsidiary (other than Liens permitted hereunderde minimis Property excluded in the Administrative Agent’s sole discretion), (ii) cause the owner of the Equity Interests in such Subsidiary to pledge such Equity Interests (including, without limitation, delivery of original stock certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(b) The Borrower will at all times cause (i) all Material Real Property, and (ii) take all commercially reasonable actions necessary other tangible and intangible Property of the Borrower and each Subsidiary not covered by clause (a) above, including any Equity Interests in an Excluded Subsidiary, in each case to be subject to a Lien pursuant to the Security Instruments, except that, with respect to any Material Real Property acquired by the Borrower or a Subsidiary, the Borrower or such Subsidiary, as the case may be, shall have a period of 60 days (or such later date as the Administrative Agent may agree in its sole discretion) after such acquisition within which to subject such Material Real Property to a Lien pursuant to the Security Instruments, and, in connection therewith, the Borrower shall, or shall cause such Lien to be duly perfected to the extent required by Subsidiary to, execute and deliver such Collateral Document Security Instruments (in accordance with all applicable Lawproper form for filing, including the filing of financing statements in such jurisdictions registration or recordation, as may be reasonably applicable) as are requested by the Administrative Agent. The Borrowers shall otherwise , and take such commercially reasonable actions and execute and/or deliver necessary or advisable to subject such Material Real Property to a Lien pursuant to the Collateral Security Instruments, provided, however, that with respect to any real Property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such documents as a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent may notify the Borrower of such determination and, (x) if such real Property is not then subject to a Lien pursuant to the Security Instruments, such real Property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (y) if such real Property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent may, upon obtaining the consent of the Required Lenders, release such Lien.
(c) Upon the request of the Required Lenders, the Borrower and each of its Subsidiaries shall take any additional actions required, if any, to cause all of its right, title and interest in each Hedging Agreement to which it is a party to be collaterally assigned to the Administrative Agent, for the benefit of the Secured Parties, and shall, if requested by the Administrative Agent or the Collateral Agent shall reasonably require Required Lenders, use its commercially reasonable efforts to confirm the validity, perfection and priority of the Lien of the Collateral Documents on cause each such after-acquired properties.
(b) With respect agreement or contract to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver expressly permit such assignment and (ii) upon the occurrence of any default or event of default under such agreement or contract, (A) to permit the Collateral Agent Lenders to cure such default or event of default and assume the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer obligations of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules such agreement or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties contract and (iiB) cause any to prohibit the termination of such new Subsidiary agreement or contract by the counterparty thereto if the Lenders assume the obligations of such Loan Party under such agreement or contract and the Lenders take the actions required under the foregoing clause (A).
(d) The Borrower agrees that it will not, and will not permit any Guarantor to, xxxxx x Xxxx on any Property to execute a joinder agreement reasonably acceptable secure the Term Loan Facility without contemporaneously granting to the Administrative Agent or such comparable documentation Agent, as security for the Secured Obligations, a first priority perfected Lien on the same Property pursuant to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction Instruments in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Revolving Credit Agreement, Revolving Credit Agreement (Southcross Energy Partners, L.P.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(l), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 sixty (60) days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents documents, including, without limitation, customary legal opinions as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to any Person the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is or becomes a direct Wholly-Owned Restricted Subsidiary of a Loan Party (other than any Excluded Subsidiary) after the Closing DateDate (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or otherwise merged out of existence or dissolved within sixty (60) days of its formation (or such later date as permitted by the Administrative Agent in its sole discretion)) or upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrower), promptly within sixty (and in any event within 60 60) days after such Person becomes a Subsidiary) formation, acquisition, designation or cessation, or such longer period as the Administrative Agent may approve in its reasonable discretion, the Borrower shall:
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly-Owned Restricted Subsidiary owned by such Loan Partythat constitute Collateral and that are “certificated securities” (as defined in Article 8 of the UCC), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly-Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and as applicable; and
(ii) cause any such new Wholly-Owned Restricted Subsidiary (except Excluded Subsidiaries), (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (including, without limitation, (1) all documentation and other information with respect to such new Restricted Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (2) customary secretary’s certificates with respect to each new Restricted Subsidiary attaching such documents as were delivered by the original Subsidiary Guarantors on the Closing Date) or, to the extent the Borrower elects to join such Subsidiary as a co-borrower, to become a Borrower in compliance with Section 2.23 hereof, and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state and local law to the extent required by such agreement agreements in accordance with all applicable U.S. Requirements of Law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, ; provided that (1x) the no pledge of Excluded Equity Interests shall be required and (y) no perfection actions by “control” (except with respect to be delivered to the Collateral Agent, or on which a Lien is (I) Equity Interests and certain debt instruments and (II) Control Agreements required to be created, pursuant to clause (iSection 5.12) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take be taken. For the actions specified in clause (ii) avoidance of this Section 6.11(b); provided that doubt, the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) Credit Parties shall be treated as voting stock for purposes of this Section 6.11(b)under no obligation to deliver any leasehold mortgages, landlord waivers or collateral access agreements.
(c) Promptly Upon the acquisition of any new Material Property:
(i) within fifteen (15) Business Days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall furnish to the Collateral Agent a description of such Material Property in detail reasonably satisfactory to the Collateral Agent; and
(ii) within ninety (90) days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall grant to the Collateral Agent, within 60 days of the acquisition thereof, Agent a security interest in such Material Property and mortgage deliver a mortgage, deed of trust or deed to secure debt in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless which, if reasonably requested by the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages Administrative Agent, shall be granted pursuant to documentation reasonably satisfactory in form accompanied by a customary legal opinion) and substance deliver to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyAgent, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Credit Party about special flood hazard area status, if applicable, in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Amendment Agreement (Jamf Holding Corp.), Amendment Agreement (Juno Topco, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended required to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 sixty (60) days after the acquisition thereofthereof (or, with respect to intellectual property, in any event on a quarterly basis) (or such later date as the Collateral Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, under the Loan Documents; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Collateral Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate or ceases to be an Excluded Subsidiary, promptly (and in any event within 60 sixty (60) days after the later of (I) the date such Person becomes a SubsidiarySubsidiary or (II) the date the Borrower delivers to the Administrative Agent financial statements by which it is determined that such Person ceased to be an Excluded Subsidiary (or in the case of each of clauses (I) and (II), such later date as the Collateral Agent may agree)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(sholder (or holders) of such Equity Interests, and all written intercompany notes notes, if any, representing Indebtedness owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Collateral Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all other actions necessary or advisable in the opinion of the Administrative Agent or reasonably requested by the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (a), (b), (d), (fe) or (g) of the definition of Excluded Subsidiary and Subsidiary, (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause , (13) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to no more than (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged and (4) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged.
(c) Promptly Each Loan Party shall grant to the Collateral Agent, within 60 ninety (90) days of the acquisition thereofthereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property located in the United States and owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 10 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderunder the Loan Documents. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, to the extent so required, a Title Policy, a Survey and (but only if necessary to permit the issuer of the Title Policy to omit a survey exception or issue any survey dependent endorsements reasonably requested by the Collateral Agent), local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage).
(d) The foregoing clauses (a) through (c) shall not require the creation or perfection of pledges of or security interests in, mortgages on, or the obtaining of title insurance Title Policies or surveys Surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative AgentCollateral Agent and the Borrower, the cost of creating or perfecting such pledges or security interests in in, or Mortgages on, such assets or obtaining title insurance Title Policies or surveys Surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets)asset constitutes an Excluded Asset. In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) ); or (b) unavoidably result in material issues of director’s or officer’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Collateral Agent may grant extensions of time for the perfection of security interests in in, or Mortgages on, or the obtaining of title insurance Title Policies or Surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersBorrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxxthe Borrower. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company Borrower that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessthe Senior Notes.
Appears in 2 contracts
Samples: Credit Agreement (Halyard Health, Inc.), Credit Agreement (Halyard Health, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereofthereof or such longer period approved by the Administrative Agent) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Security Agreement Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Restricted Subsidiary of a Loan Party Borrower that guarantees the obligations under the Senior Notes or any Permitted Refinancing thereof after the Closing Date, promptly (and in any event within 60 days after ten Business Days) cause such Person becomes a Subsidiary) Restricted Subsidiary to (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation Joinder Agreement to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (Bii) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement Security Agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent Agent.
(c) With respect to any fee interest in any real property acquired by Borrower or any Guarantor after the Collateral Agent. Notwithstanding the foregoing, Closing Date with a purchase price of greater than $5.0 million:
(1i) the Equity Interests required to be delivered Borrower shall deliver to the Collateral Agent, as mortgagee, for its benefit and for the benefit of the other Security Agreement Secured Parties, fully executed counterparts of Mortgages, each dated as of the date of acquisition of such property duly executed by Borrower or on which the applicable Guarantor, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgage as may be necessary to create a Lien is required valid, perfected Lien, subject to Permitted Liens, against the properties purported to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause covered thereby;
(ii) of this Section 6.11(b); provided that Borrower shall deliver to the exception set forth Collateral Agent mortgagee’s title insurance policies in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) favor of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (Collateral Agent, as defined in Section 957(a) mortgagee for the ratable benefit of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) Security Agreement Secured Parties in an amount equal to 100% of the Equity Interests not constituting voting stock fair market value of any the Premises purported to be covered by the related Mortgage, insuring that title to such Subsidiaryproperty is marketable and that the interests created by the Mortgage constitute valid Liens thereon free and clear of all Liens, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) defects and encumbrances other than Permitted Liens, and shall be treated as voting stock for purposes accompanied by evidence of this Section 6.11(b).the payment in full of all premiums thereon; and
(ciii) Promptly grant Borrower shall deliver to the Collateral Agent, within 60 days with respect to each of the acquisition thereofcovered Premises, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel most recent survey of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and thatPremises, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations either (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens A) an updated survey certification in favor of the Collateral Agent required (for its benefit and for the benefit of the other Security Agreement Secured Parties) from the applicable surveyor stating that, based on a visual inspection of the property and the knowledge of the surveyor, there has been no change in the facts depicted in the survey or (B) an affidavit from Borrower and the Guarantors stating that there has been no change, other than, in each case, changes that do not materially adversely affect the use by Borrower or such Guarantor, as applicable, of such Premises for Borrower or such Guarantor’s business as so conducted, or intended to be granted pursuant to the Mortgages and all taxesconducted, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take at such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)Premises.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Bankrate, Inc.), Revolving Credit Agreement (Bankrate, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, (ii) to the extent requested by the Administrative Agent or the Collateral Agent, deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent, and (iiiii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Security Documents in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage the Security Documents against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)properties.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (BioScrip, Inc.), Credit Agreement (BioScrip, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property assets acquired after the Closing Date by any Loan Credit Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is which are not so subjectsubject (but, in any event, excluding any assets described in paragraph (b) of this subsection), promptly (and in any event within 60 45 days after the acquisition thereof) ): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, or a Non-Guarantor Subsidiary) promptly (and in any event within 60 45 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such (provided that with respect to any Foreign Subsidiary of Borrower, in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Loan PartyDocument), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer duly executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary or a Non-Guarantor Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly (i) Each Credit Party will promptly grant to the Collateral Agent, within 60 days 180 Business Days of the acquisition thereof, a security interest interests and Mortgages in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of such owned or leased Real Property owned in fee by of such Loan Credit Party as is acquired by such Loan Credit Party after the Closing Date and that, together with any improvements thereon, in the case of any such owned or leased Real Property, individually or in the aggregate has a fair market value of at least $15 million 5.0 million, as additional security for the Obligations (unless the subject unless, with respect to any such property, (x) such property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 or (y) the Administrative Agent determines, in its reasonable discretion, that the fees and expenses of obtaining a Mortgage with respect to such property and the other related deliveries required by this Section 5.11 would be disproportionate to the expected benefits to be received by the Secured Parties) and (ii) in the event the San Xxxxxx Agreement is terminated or the sale of the San Xxxxxx Facility is not otherwise consummated prior to March 31, 2007, Holdings will promptly grant to the Collateral Agent, within 30 days of the expiration of such nine-month period (or, if earlier, the termination of the San Xxxxxx Agreement), security interests and a Mortgage in the San Xxxxxx Facility. Such Mortgages In connection with either clause (i) or (ii) above, the Collateral Agent shall have received:
(A) a Mortgage encumbering each Mortgaged Real Property in favor of Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by the Credit Party that is the owner of or holder of a possessory interest in such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be granted pursuant required in connection with the recording or filing thereof to documentation reasonably satisfactory create a Lien under applicable law, and such UCC-1 Financing Statements, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, and any other instruments necessary to grant a mortgage lien under the Administrative Agent and laws of any applicable jurisdiction;
(B) with respect to each leasehold Mortgaged Real Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Collateral Agent in order for the owner of the fee interest therein to consent to or approve of the Lien contemplated by the Mortgage with respect to such leasehold Mortgaged Real Property, and as may be obtained by the owner of such leasehold interest constituting such leasehold Mortgaged Real Property using commercially reasonable efforts;
(C) with respect to each Mortgage, a Title Policy shall constitute valid (A) be issued by the Title Company, (B) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement (if available under applicable law), (D) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, and enforceable perfected (E) contain no exceptions to title other than exceptions for the Permitted Liens subject only applicable to Liens permitted hereundersuch Mortgaged Real Property and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements);
(D) with respect to each Mortgaged Real Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be reasonably required to induce the Title Company to issue the Title Policies and endorsements contemplated in subparagraph (iii) above;
(E) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to in subparagraph (iii) above;
(F) with respect to each Mortgaged Real Property, copies of all leases in which any Group Company holds the lessor’s interest or other agreements relating to possessory interests of any Group Company, if any. To the extent any of the foregoing encumber any Mortgaged Real Property, such agreement shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement;
(G) with respect to each Mortgaged Real Property, each Group Company shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Real Property, including the use of forms provided by state or local agencies, where such forms exist, whether to Borrower or to or with the state or local agency;
(H) with respect to each Mortgaged Real Property, a legal opinion from counsel licensed in the state in which the Mortgaged Real Property is located in form and substance reasonably satisfactory to Collateral Agent; and
(I) a Survey of any such Mortgaged Real Property. The Mortgages or and instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges due and payable in connection therewith shall be paid in full. Such Loan Credit Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory within 60 days after prompt notice of the acquisition of such after-acquired Real Property is provided to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Cpi International, Inc.), Credit Agreement (Cpi International, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Partyany Guarantor, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (Biii) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and, in the case of a Foreign Subsidiary, execution and delivery of a security agreement with respect to such Foreign Subsidiary’s Equity Interests compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause clauses (i) and (iii) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that the this exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b)5.11(b) Equity Interests of such Subsidiary.
(c) Promptly grant to the Collateral Agent, (and in any event within 60 days of the acquisition thereof), grant to the Collateral Agent as additional security for the Secured Obligations, a first priority security interest in and mortgage in a form reasonably satisfactory Mortgage with respect to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property (i) owned in fee by such Loan Party as is Party, (ii) acquired by such Loan Party after the Closing Date and Date, (iii) that, together with any improvements thereon, individually has a fair market value of at least $15 5.0 million as additional security (except for the Obligations property at 000 Xxxxxx Xxxx Xx., Xxxxxxxxxx, XX 77384) and (unless the subject property iv) that is already not mortgaged to a third party to the extent as permitted hereunder)by Section 6.02. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise also take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage, which may include obtaining (x) a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien (subject to Permitted Collateral Liens) on the Mortgaged Property and fixtures described therein in the amount equal to not less than 100% of the fair market value of such Mortgaged Property and fixtures, (each such policy or new Mortgage against such aftermarked-acquired Real Property (including up commitment, a “Title Policy”), (y) a Survey and (z) a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof (or, with respect to intellectual property, in any event on a quarterly basis) (or such later date as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, ; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate or ceases to be an Excluded Subsidiary, promptly (and in any event within 60 thirty (30) days after the later of (I) the date such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary not required to be pledged pursuant to the last sentence of Section 5.10(b)), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent Lender such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent Lender shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, Lender a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Security Documents in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative AgentLender. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent Lender the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation Joinder Agreement to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, Pledgor or, in the case of a Foreign Subsidiary, execute a security agreement document compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction (and in form and substance reasonably satisfactory to the Administrative AgentLender) to cause such Subsidiary to become a Guarantor and a Pledgor, and (B) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent or the Collateral Agent Lender to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement Security Document in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral AgentLender. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a no Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this the preceding sentence, if, in the case of either sub-clause (A) or (B) of such clause (ii), doing so would constitute an investment of earnings in United States property under Section 6.11(b956 (or a successor provision) of the Code, which investment would or could reasonably be expected to trigger a material increase in the net income of a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by Lender (or a material decrease in the amount of net operating loss carryovers under Section 172 of the Code, the amount of capital loss carryovers under Section 1212 of the Code or the amount of unused tax credits); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence such exceptions shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and Subsidiary, (B) 100% of the Equity Interests of KEMET de Mexico, S.A. de C. V., (C) 100% of the Equity Interests of any entity which ceases to be a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code), and (D) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.10(b).
(c) With respect to any person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 30 days after such person becomes a Subsidiary) execute and deliver to Lender (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary.
(d) Promptly grant to the Collateral Agent, Lender (and in any event within 60 45 days of the acquisition thereof, ) a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, and (ii) unless Lender otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $250,000, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent Lender and shall constitute valid and enforceable perfected first priority Liens subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Lender required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral AgentLender) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Kemet Corp), Credit Agreement (Kemet Corp)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)9.24, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien lien created by any of the Collateral Documents Financing Agreements but is not so subjectsubject (but, in any event, excluding any Capital Stock of a Foreign Subsidiary or a Disregarded Domestic Person not required to be pledged pursuant to the last sentence of clause (b) below), promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof or such longer period as may be reasonably acceptable to the Lender in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent Lender such amendments or supplements to the relevant Collateral Documents Financing Agreements or such other documents as the Administrative Agent or the Collateral Agent Lender shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, Lender a Lien lien on such property subject to no Liens liens other than Liens permitted hereunderPermitted Liens, (ii) deliver opinions of counsel to the Loan Parties in form and substance reasonably acceptable to the Lender (but only if delivery thereof with respect to such property would have been required if the property had been owned on the Closing Date), and (iiiii) take all commercially reasonable actions necessary to cause such Lien lien to be duly perfected to the extent required by such Collateral Document Financing Agreements in accordance with all applicable LawLegal Requirements (but subject, in any case, to any Permitted Liens), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative AgentLender. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien lien of the Collateral Documents on Financing Agreements against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiarySubsidiary or such longer period as may be reasonably acceptable to the Lender in its sole discretion), subject to the final sentence of this clause (b) (i) deliver to the Collateral Agent Lender the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation Joinder Agreement to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)Guarantor, substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) deliver customary opinions of counsel to the Loan Parties with respect to such Joinder Agreement and the Loan Documents to which such new Subsidiary becomes a party pursuant to such Joinder Agreements and (C) subject to the terms of the Financing Agreements, to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent Lender to cause the Lien lien created by the applicable Collateral Documents (including the Security Agreement) Financing Agreement to be duly perfected to the extent required by such agreement Financing Agreement in accordance with all applicable LawLegal Requirements, including the filing of financing statements (or equivalent registrations) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral AgentLender. Notwithstanding the foregoing, (1) the Equity Interests Capital Stock required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Lender pursuant to clause (i) of this Section 6.11(b) the preceding sentence shall not include any Equity Interests Capital Stock of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary a Disregarded Domestic Person and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b)the preceding sentence; provided that the exception set forth contained in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) Foreign Subsidiary or a Disregarded Domestic Person representing 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests Capital Stock not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests Capital Stock constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(bclause (b); provided, further, that, notwithstanding anything to the contrary, no Capital Stock of any partnership, joint venture or non-Wholly Owned Subsidiary which cannot be pledged without the consent of one or more third parties that are not Affiliates of the Borrower (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) shall be required to be pledged as Collateral.
(c) Promptly grant With respect to the Collateral Agent, within 60 days any person that is or becomes a Subsidiary of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date Date, promptly (and that, together with in any improvements thereon, individually has event within thirty (30) days after such person becomes a fair market value of at least $15 million Subsidiary or such longer period as additional security for the Obligations (unless the subject property is already mortgaged to a third party may be reasonably acceptable to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory Lender in form its sole discretion) execute and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests inLender, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as its designee (i) in a counterpart to the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or Intercompany Note and (ii) the creation or perfection of if such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before Subsidiary is a security interest can be grantedLoan Party, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and an endorsement to the extent that such action would Intercompany Note (aundated and endorsed in blank) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on form attached thereto, endorsed by such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsSubsidiary.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Loan and Security Agreement (Five Below, Inc), Loan and Security Agreement (Five Below, Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate (other than a Joint Venture), promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $2.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Promptly grant to the creation or perfection Collateral Agent, within 60 days of pledges of or the acquisition thereof, a security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if interest in and for so long as Mortgage on (i) each Pipeline owned in fee by such Loan Party as is acquired by such Loan Party after the reasonable judgment Closing Date and that, together with any improvements thereon and any related unmortgaged Pipeline, has a fair market value of at least $2.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Pipeline of such Loan Party which lease together with any related unmortgaged Pipeline leases has a fair market value of at least $2.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Pipeline (including a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys ) in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsMortgage). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Regency Energy Partners LP), Credit Agreement (Regency Energy Partners LP)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Partyany Guarantor, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (Biii) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and, in the case of a Foreign Subsidiary, execution and delivery of a security agreement with respect to such Foreign Subsidiary’s Equity Interests compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause clauses (i) and (iii) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that the this exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b)5.11(b) Equity Interests of such Subsidiary.
(c) Promptly grant to the Collateral Agent, (and in any event within 60 days of the acquisition thereof), grant to the Collateral Agent as additional security for the Secured Obligations, a first priority security interest in and mortgage in a form reasonably satisfactory Mortgage with respect to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property (i) owned in fee by such Loan Party as is Party, (ii) acquired by such Loan Party after the Closing Date and (iii) that, together with any improvements thereon, individually has a fair market value of at least $15 1.5 million as additional security for the Obligations and (unless the subject property iv) that is already not mortgaged to a third party to the extent as permitted hereunder)by Section 6.02. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise also take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage, which may include obtaining (x) a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien (subject to Permitted Collateral Liens) on the Mortgaged Property and fixtures described therein in the amount equal to not less than 100% of the fair market value of such Mortgaged Property and fixtures, (each such policy or new Mortgage against such aftermarked-acquired Real Property (including up commitment, a “Title Policy”), (y) a Survey and (z) a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Mattress Firm Holding Corp.), Credit Agreement (Mattress Firm Holding Corp.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereof) (i) execute and deliver to the Administrative Funding Agent and the Collateral Agent such amendments or supplements to the 160 relevant Collateral Security Documents or such other documents as the Administrative Funding Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Funding Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Funding Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary after the Closing Date (other than an Excluded Collateral Subsidiary), or any Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Loan Party after by operation of the Closing Dateprovisions of Section 5.11(d), promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiarySubsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d)) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary that is a Wholly Owned Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (or, in the case of a Subsidiary organized under the laws of the United States or any state thereof or the District of Columbia, a U.S. Borrower) and a joinder agreement agreements to the applicable Collateral Security Documents (including the Security Agreement)in each case, substantially in the form annexed thereto, thereto or in such other form as may be reasonably satisfactory to the Funding Agent) or, in the case of a Foreign Subsidiary, execute a security agreement such other Security Documents (or joinder agreements) to the extent possible under and compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Funding Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Funding Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Funding Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(bparagraph (b) shall not include any apply to the Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason (x) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of clauses Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and (b)y) any Joint Venture Subsidiary, (d)to the extent the terms of any applicable joint venture, (f) stockholders, partnership, limited liability company or (g) similar agreement prohibits or conditions the pledging of its Equity Interests to secure the definition of Excluded Subsidiary Secured Obligations and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause paragraph (1b) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Aany Company listed on 161 Schedule 5.11(b) voting stock to the extent any applicable Requirement of any Subsidiary that is Law prohibits it from becoming a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Loan Party.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15 million 5 million, and (ii) unless the Collateral Agent otherwise consents, and subject to obtaining any consent required from the applicable landlord and any applicable mortgagee (each of which the Loan Parties agree to use commercially reasonable efforts to obtain), each leased Real Property of such Loan Party which lease individually has a fair market value the Dollar Equivalent of which is at least $5 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Funding Agent and the Collateral Agent and shall constitute valid valid, perfected and enforceable perfected First Priority Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Funding Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy (or title opinion satisfactory to the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Funding Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests inIf, or the obtaining of title insurance or surveys with respect to, particular assets if at any time and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time after the Closing Date, Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 1% of the consolidated total assets of Canadian Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 1% of Consolidated EBITDA of Canadian Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to Section 6.11 shall be subject this Agreement, cause one or more of such Subsidiaries to exceptions and limitations set forth in the become Loan Parties (notwithstanding that such Subsidiaries are, individually, Excluded Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding Subsidiaries) such that the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document condition ceases to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednesstrue.
Appears in 2 contracts
Samples: Credit Agreement (Novelis South America Holdings LLC), Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereofthereof (or, with respect to intellectual property, in any event on a quarterly basis) (or, in each case, such later date as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, ; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired propertiesproperties to the extent required by the Collateral Documents.
(b) With respect to any Person that is or becomes a direct Restricted Subsidiary of directly owned by a Loan Party after the Closing DateDate or if any Restricted Subsidiary that was an Excluded Subsidiary ceases to be an Excluded Subsidiary, promptly (and in any event within 60 30 days after the date such Person becomes a SubsidiaryRestricted Subsidiary or the date the Borrower delivers to the Administrative Agent financial statements by which it is determined that such Restricted Subsidiary ceased to be an Excluded Subsidiary (or such later date as the Administrative Agent may agree)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(sholder (or holders) of such Equity Interests, and all written intercompany notes notes, if any, representing Indebtedness owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Restricted Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all other actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to compliance with clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary be required only to the extent required by reason of clauses (b), (d), (f) or (g) the terms of the definition of Excluded Subsidiary and Security Agreement, (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to become a Subsidiary Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause ) and (13) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing no more than 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged.
(c) Promptly Each Loan Party shall grant to the Collateral Agent, within 60 90 days of the acquisition thereofthereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property located in the United States and owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 25 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). In addition, the Borrower agrees that, if the Alabama Property is not sold by December 31, 2014, the Borrower will cause a Mortgage to be granted on the Real Property comprising the Alabama Property within 90 days thereafter (or such later date as the Administrative Agent may agree). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, to the extent so required, a Title Policy, a Survey and (if required in order to permit the issuer of the Title Policy to omit a survey exception or issue any survey dependent endorsements requested by the Administrative Agent), local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage). Notwithstanding anything to the contrary contained herein or in any other Loan Document, in the event the Borrower is required hereunder to deliver a Mortgage with respect to the Alabama Property, the Borrower shall not be required to provide a Survey with respect to such Alabama Property (and the Borrower shall not be responsible to provide to the Collateral Agent a Title Policy that does not contain an exception for survey matters, or which includes endorsements that are, to the extent applicable, dependent on a survey, including, without limitation, a zoning endorsement).
(d) The foregoing paragraphs (a) through (c) shall not require the creation or perfection of pledges of or security interests in, or Mortgage on, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative AgentAgent and the Borrower, the cost of creating or perfecting such pledges or security interests in in, or a Mortgage on, such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) such asset constitutes an Excluded Asset (as such term is defined in the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsSecurity Agreement). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) ); or (b) unavoidably result in material issues of director’s or officer’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in in, or a Mortgage on, or the obtaining of title insurance or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersBorrower, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxxthe Borrower. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company Borrower that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Time Inc.), Credit Agreement (Time Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(k), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 sixty (60) days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents documents, including, without limitation, customary legal opinions as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary (other than any Person that is or becomes a direct Subsidiary of a Loan Party Excluded Subsidiary) after the Closing DateDate (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or otherwise merged out of existence or dissolved within sixty (60) days of its formation (or such later date as permitted by the Administrative Agent in its sole discretion)) or upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrower), promptly within sixty (and in any event within 60 60) days after such Person becomes a Subsidiary) formation, acquisition, designation or cessation, or such longer period as the Administrative Agent may approve in its reasonable discretion, the Borrower shall:
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary owned by such Loan Partythat constitute Collateral and that are “certificated securities” (as defined in Article 8 of the UCC), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and as applicable; and
(ii) cause any such new Restricted Subsidiary (except Excluded Subsidiaries), (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (including, without limitation, (1) all documentation and other information with respect to such new Restricted Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (2) customary secretary’s certificates with respect to each new Restricted Subsidiary attaching such documents as were delivered by the original Subsidiary Guarantors on the Closing Date) and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state and local law to the extent required by such agreement agreements in accordance with all applicable U.S. Requirements of Law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, ; provided that (1x) the no pledge of Excluded Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the and (y) no perfection actions specified in clause by “control” (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) except with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2certain debt instruments) shall be treated as voting stock for purposes required to be taken. For the avoidance of this Section 6.11(b)doubt, the Credit Parties shall be under no obligation to deliver any leasehold mortgages, landlord waivers or collateral access agreements with respect to Real Property.
(c) Promptly Upon the acquisition of any new Material Property:
(i) within fifteen (15) Business Days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall furnish to the Collateral Agent a description of such Material Property in detail reasonably satisfactory to the Collateral Agent; and
(ii) within ninety (90) days after such acquisition (as such period may be extended by the Administrative Agent in its sole discretion), the applicable Credit Party shall grant to the Collateral Agent, within 60 days of the acquisition thereof, Agent a security interest in such Material Property and mortgage deliver a mortgage, deed of trust or deed to secure debt in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless which, if reasonably requested by the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages Administrative Agent, shall be granted pursuant to documentation reasonably satisfactory in form accompanied by a customary legal opinion) and substance deliver to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyAgent, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Credit Party about special flood hazard area status, if applicable, in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Blend Labs, Inc.), Credit Agreement (2U, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject Upon the formation (including without limitation, by Division) or acquisition of any new direct or indirect Domestic Subsidiary that is not an Excluded Subsidiary (or a direct or indirect Domestic Subsidiary ceasing to this Section 6.11 and Section 6.13(b), with respect to any property acquired constitute an Excluded Subsidiary) after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subjectpromptly, promptly (and in any event event, within 60 the later of (x) 45 days after following the acquisition thereofdate of such Person becoming a Subsidiary (or ceasing to constitute an Excluded Subsidiary) or (y) 30 Business Days following the end of the Fiscal Quarter in which such Person becomes a Subsidiary that is not an Excluded Subsidiary (or ceases to constitute an Excluded Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents later date as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agentmay agree, for in its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (iisole discretion) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, thereto and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding .
(b) Upon the foregoingformation (including without limitation, by Division) or acquisition of any new direct Subsidiary of a Loan Party after the Closing Date promptly, and in any event within the later of (1x) 45 days following the date of such Person becoming a Subsidiary or (y) 30 Business Days following the end of the Fiscal Quarter in which such formation or acquisition occurs (or such later date as the Administrative Agent may agree, in its sole discretion), solely to the extent required by the Security Agreement, deliver to the Collateral Agent the certificates, if any, representing all of the Capital Stock of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party that together with undated instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party; provided that (i) the Equity Interests foregoing requirements shall not apply to the Capital Stock of any Immaterial Subsidiary and (ii) the Capital Stock of Controlled Foreign Subsidiaries required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply limited to (A) voting stock Voting Interests of any such Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock interests of such Subsidiary and (B) 100% of the Equity Interests Capital Stock not constituting voting stock Voting Interests of any such Subsidiary, except that any such Equity Interests Capital Stock constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Interests for purposes of this Section 6.11(b6.12(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Davita Inc.), Credit Agreement (Davita Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(l), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 sixty (60) days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents documents, including, without limitation, customary legal opinions as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law, including the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to any Person the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is or becomes a direct Wholly-Owned Restricted Subsidiary of a Loan Party (other than any Excluded Subsidiary) after the Closing DateDate (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or otherwise merged out of existence or dissolved within sixty (60) days of its formation (or such later date as permitted by the Administrative Agent in its sole discretion)) or upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrower), promptly within sixty (and in any event within 60 60) days after such Person becomes a Subsidiary) formation, acquisition, designation or cessation, or such longer period as the Administrative Agent may approve in its reasonable discretion, the Borrower shall:
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly-Owned Restricted Subsidiary owned by such Loan Partythat constitute Collateral and that are “certificated securities” (as defined in Article 8 of the UCC), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly-Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and as applicable; and
(ii) cause any such new Wholly-Owned Restricted Subsidiary (except Excluded Subsidiaries), (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (including, without limitation, (1) all documentation and other information with respect to such new Restricted Subsidiary required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (2) customary secretary’s certificates with respect to each new Restricted Subsidiary attaching such documents as were delivered by the original Subsidiary Guarantors on the Closing Date) or, to the extent the Borrower elects to join such Subsidiary as a co-borrower, to become a Borrower in compliance with Section 2.23 hereof, and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Jamf Holding Corp.), Credit Agreement (Juno Topco, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(l), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 120 days after the acquisition thereof) or formation thereof (or such longer period as the Administrative Agent may approve in each case in its reasonable discretion), (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other New York law governed documents (or, in the case of a Credit Party incorporated or otherwise organized under the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia, and joined as such at the Borrower Agent’s sole discretion, under the laws of such other jurisdiction, documents governed by the laws of such Credit Party’s jurisdiction of incorporation, establishment or organization) as the Administrative Agent or the Collateral Agent or the Required Lenders shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law (or, solely with respect to any Excluded Subsidiary that the Borrowers elect, in their sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary) on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law (or, including solely with respect to any Excluded Subsidiary that the Borrowers elect, in their sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary), including, in the case of Domestic Subsidiaries that are Guarantors, the filing of financing statements and Intellectual Property security agreements in such U.S. jurisdictions as may be reasonably requested by the Administrative AgentAgent or the Collateral Agent or the Required Lenders. The Borrowers and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee, including the First Lien Collateral Agent pursuant to the Intercreditor Agreement) such New York law (or, solely with respect to any Excluded Subsidiary that the Borrowers elect, in their sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary in accordance with the last paragraph of Section 5.10(b)) governed documents as the Administrative Agent or the Collateral Agent or the Required Lenders shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect to any Person that is or becomes interest in any Real Property (excluding any leaseholds) located in the United States having a direct Subsidiary value (together with improvements thereof) of at least $12,500,000 (to the extent of a Loan Party type included in the definition of “Collateral”) (“Material Real Property”) acquired after the Closing DateDate by any Credit Party, such Credit Party will use commercially reasonable efforts to promptly (and in no event later than 120 days (or such later date as permitted by the Administrative Agent in its reasonable discretion)) after the date of such acquisition (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such interest in Material Real Property, along with, if applicable, a corresponding UCC fixture filing for filing in the applicable United States jurisdiction (or, if relevant, equivalent form in any non-United States jurisdiction), each in form and substance reasonably satisfactory to the Collateral Agent and the Required Lenders, as may be necessary to create a valid, perfected second and subsisting Lien, subject to liens permitted under Section 6.02, against such Real Property, (ii) if reasonably requested by the Collateral Agent or the Required Lenders, provide the Lenders with title and extended coverage insurance covering such interest in Real Property in an amount at least equal to the fair market value of such Real Property as reasonably estimated by the Borrower Agent (or such lesser amount as shall be specified by the Collateral Agent or the Required Lenders) together with title endorsements reasonably requested by the Collateral Agent or the Required Lenders, (iii) if reasonably requested by the Collateral Agent or the Required Lenders, provide the Lenders with an ALTA survey thereof together with a surveyor’s certification (or an existing survey accompanied, if necessary, by a “no-change” affidavit and/or other documents if same is/are sufficient for the title insurer to issue survey coverage in the applicable title policy, remove therefrom the standard survey exceptions, and issue the endorsements required pursuant to clause (ii) above), (iv) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue any applicable title policy and endorsements referenced in clause (ii) above, (v) if reasonably requested by the Collateral Agent or the Required Lenders, deliver (subject to, in respect of Material Real Property located outside the United States, customary market practice in the relevant jurisdiction) to the Collateral Agent legal opinions in form and substance reasonably satisfactory to the Collateral Agent and the Required Lenders and covering such matters related to such Mortgage as the Collateral Agent or the Required Lenders may reasonably request, including, without limitation, the enforceability of the applicable Mortgage, (vi) in the case of Material Real Property located in the United States that is subject to the insurance requirements of applicable federal regulations, deliver or cause to be delivered to the Collateral Agent a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Material Real Property (together with notice about special flood hazard area status and flood disaster assistance, duly executed by the applicable Credit Party entering into the applicable Mortgage), and in the event any such Material Real Property or a portion thereof is located within 60 an area designated by the Director of the Federal Emergency Management Agency to be a “special flood hazard area” and as required by applicable law, evidence of a flood insurance policy for such Material Real Property or the applicable portion thereof, and (vii) (subject to, in respect of any Material Real Property located outside the United States, customary market practice in the relevant jurisdiction), such other information, documentation (including, but not limited to, existing appraisals, existing environmental reports, and to the extent applicable, using commercially reasonable efforts for not more than 120 days after the Collateral Agent’s request therefor, subordination agreements), certifications, in each case, as may be reasonably required by the Collateral Agent or the Required Lenders or necessary in order to create a valid, perfected first and subsisting Lien subject to liens permitted under Section 6.02 against the Material Real Property covered by the applicable Mortgage.
(c) Subject to the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is a Wholly Owned Restricted Subsidiary (other than any Excluded Subsidiary) after the Closing Date (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or otherwise merged out of existence or dissolved within 120 days of its formation (or such later date as permitted by the Administrative Agent in its reasonable discretion)), upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrowers) or upon Borrowers’ determination (in its sole discretion) that an Excluded Subsidiary shall be joined as a Guarantor, within 120 days after such Person becomes a Subsidiary) formation, acquisition, designation, determination or cessation (or such longer period as the Administrative Agent may approve in each case in its reasonable discretion), the Borrowers shall:
(i) if such Subsidiary is a Wholly Owned Restricted Subsidiary of a Domestic Subsidiary that is a Credit Party or of a Foreign Subsidiary that is a Credit Party and in whose jurisdiction of organization the following is customary in similar financing transactions, deliver to the Collateral Agent (or, at any time prior to the First Lien Termination Date, to the First Lien Collateral Agent, subject to the provisions of the Intercreditor Agreement or any applicable Other Intercreditor Agreement) the certificates, if any, representing all of the Equity Interests of such Wholly Owned Restricted Subsidiary owned by that constitute Collateral and that are certificated (and that, in the case of any such Loan Wholly Owned Restricted Subsidiary of a U.S. Credit Party, are “certificated securities” (as defined in Article 8 of the UCC)), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect as applicable, and all other Collateral that is required to Foreign Subsidiaries, be delivered pursuant to the extent Security Agreements or other applicable Security Document and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and not previously so delivered; and
(ii) cause any such new Wholly Owned Restricted Subsidiary (except Excluded Subsidiaries (other than any Excluded Subsidiary the Borrowers elect in their sole discretion to join as a Guarantor in accordance with the last paragraph of this Section 5.10(b))), (A) to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and or, to the extent the Borrowers elect to join such Subsidiary as a co-borrower, to become a Borrower in compliance with Section 2.24 hereof, (if such subsidiary is a Domestic Subsidiary) a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of or (if such Subsidiary is a Foreign Subsidiary, execute Subsidiary that is an Excluded Subsidiary the Borrowers elect in their sole discretion to join as a security agreement compatible Guarantor in accordance with the Laws last paragraph of this Section 5.10(b)) such Foreign Subsidiary’s security documentation as may be customary in its jurisdiction in form of organization, as reasonably agreed between the Borrowers and substance reasonably satisfactory to the Administrative AgentAgent and the Required Lenders, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents and, as applicable, the Agreed Security Principles) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state law (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrowers elect, in their sole discretion, to join as a Guarantor hereunder in accordance with the last paragraph of this Section 5.10(b), the applicable laws of the jurisdiction of organization of such Foreign Subsidiary) to the extent required by such agreement agreements in accordance with all applicable Requirements of Law, (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrowers elect, in their sole discretion, to join as a Guarantor hereunder in accordance with the last paragraph of this Section 5.10(b), the applicable laws of the jurisdiction of organization of such Foreign Subsidiary), including (in the case of a Domestic Subsidiary that is a Guarantor) the filing of financing statements and Intellectual Property security agreements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding Agent or the foregoing, Required Lenders; provided that (1x) the no pledge of Excluded Equity Interests shall be required and (y) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), mortgage, deed of trust, deed to secure debt, leasehold mortgages, landlord waivers or collateral access agreements shall be required to be delivered entered into under the laws of any jurisdiction. Notwithstanding anything to the Collateral Agentcontrary, or on which a Lien is required in the event that the Borrowers shall at any time desire to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of join a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b)as a Guarantor, (d), (f) or (g) of the definition of Excluded Subsidiary Borrowers and (2) no Excluded Subsidiary or Unrestricted Subsidiary the Administrative Agent and the Required Lenders shall be required reasonably negotiate in good faith to take the actions specified in clause (ii) of amend this Section 6.11(b); provided that the exception set forth in clause (1) with respect Agreement to Equity Interests of a subject guarantee and collateral requirements vis-à-vis any such Foreign Subsidiary that is an Excluded Subsidiary by reason that Borrowers elect (in their sole discretion) to join as a Guarantor, to “agreed security principles” that are customary for the jurisdiction of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock organization of such Foreign Subsidiary and for facilities substantially similar to those provided for in this Credit Agreement (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary“Agreed Security Principles”), except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxesguarantee and collateral requirements hereunder and under the other Loan Documents shall, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In additionForeign Subsidiary Guarantor, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject in all cases to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessAgreed Security Principles.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Solera Corp.), Credit Agreement (Solera Corp.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Second Priority Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Subject to the terms of the Intercreditor Agreement, Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties. Prior to the Discharge Conditions being met, the requirements of this Section 5.11(a) to deliver any Collateral to the Collateral Agent shall be deemed satisfied by the delivery of such Collateral to the First Lien Collateral Agent.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate (other than a Joint Venture), promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or reasonably advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b). Prior to the Discharge Conditions being met, the requirements of this Section 5.11(b) to deliver any Collateral to the Collateral Agent shall be deemed satisfied by the delivery of such Collateral to the First Lien Collateral Agent.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $2.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Second Priority Liens subject only Liens acceptable to Liens permitted hereunderthe Collateral Agent. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Subject to the terms of the Intercreditor Agreement, such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Subject to the creation or perfection terms of pledges the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 days of or the acquisition thereof, a security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if interest in and for so long as Mortgage on (i) each Pipeline owned in fee by such Loan Party as is acquired by such Loan Party after the reasonable judgment Closing Date and that, together with any improvements thereon and any related unmortgaged Pipeline, has a fair market value of at least $2.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Pipeline of such Loan Party which lease together with any related unmortgaged Pipeline has a fair market value of at least $2.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Second Priority Liens subject only to Liens acceptable to the Collateral Agent. Subject to the terms of the Intercreditor Agreement, the cost of creating Mortgages or perfecting such pledges instruments related thereto shall be duly recorded or security interests filed in such assets manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Subject to the terms of the Intercreditor Agreement, such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or obtaining title insurance the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or surveys new Mortgage against such after-acquired Pipeline (including a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsMortgage). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Regency Energy Partners LP), Second Lien Credit Agreement (Regency Energy Partners LP)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary not required to be pledged pursuant to the last sentence of Section 5.10(b)), promptly (and in any event within 60 days fifteen (15) Business Days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, (ii) to the extent reasonably requested by the Administrative Agent, deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent, and (iiiii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Security Documents in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days fifteen (15) Business Days after such Person person becomes a Domestic Subsidiary and thirty (30) Business Days after such person becomes a Foreign Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Domestic Subsidiary to execute a Joinder Agreement to (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Subsidiary, Guarantor and a joinder agreement Pledgor, (B) deliver opinions of counsel to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction Borrower in form and substance substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (BC) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement Security Document in accordance with all applicable LawLegal Requirements, including the filing of financing statements (or equivalent registrations) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Administrative Agent pursuant to clause (i) of this Section 6.11(b) the preceding sentence shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason a controlled foreign corporation (within the meaning of clauses (b), (d), (f) or (gSection 957(a) of the definition of Excluded Subsidiary Code) and (2) no Excluded Foreign Subsidiary or Unrestricted Subsidiary that is a controlled foreign corporation (within the meaning of Section 957(a) of the Code shall be required to take the actions specified in clause (iiii ) of this Section 6.11(b); provided the preceding sentence, provided, that the exception set forth contained in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply (subject to the laws of such Foreign Subsidiary’s jurisdiction including laws relating to financial assistance) to (A) voting stock Voting Equity Interests of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Equity Interests of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Equity Interests of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Equity Interests for purposes of this Section 6.11(b5.10(b).
(c) With respect to any person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within thirty (30) days after such person becomes a Subsidiary) execute and deliver to the Administrative Agent (or its designated bailee or agent) (i) a counterpart to the Intercompany Note, and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary; provided, that in no event shall any asset of a Foreign Subsidiary be pledged in favor of any U.S. obligations as a result of the execution of the Intercompany Note.
(d) Promptly grant to the Collateral Agent, Administrative Agent (and in any event within 60 sixty (60) days of the acquisition thereof, thereof unless extended by the Administrative Agent in its reasonable discretion) a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value Fair Market Value of at least $15 million 850,000, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.01(k)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected first priority Liens subject only to Liens permitted hereunderPermitted Liens. Such Loan Party shall promptly deliver to the Administrative Agent (and in any event within thirty (30) days) (i) a Landlord Access Agreement with respect to each leased Real Property constituting a Key Location and (ii) a Bailee Agreement with respect to each Key Location at which Collateral is in the possession and/or under the control of a third party bailee (unless, in the case of any such Key Location referenced in the immediately preceding clauses (i) and (ii), the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such applicable Collateral Access Agreements). The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full; provided, that in jurisdictions that impose mortgage recording taxes, the Security Documents shall not secure Indebtedness in an amount exceeding one hundred and ten (110%) percent of the Fair Market Value of the Mortgaged Property, as reasonably determined in good faith by the Loan Parties and reasonably acceptable to the Administrative Agent. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage) and shall take such actions relating to insurance with respect to such after-acquired Real Property and execute and/or delivery to the Administrative Agent such insurance certificates and other documentation (including with respect to title and flood insurance), in each case in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent shall reasonably request.
(de) The foregoing Notwithstanding anything to the contrary in this Section 5.10, this Section 5.10 shall not require apply to any property (including Real Property) or any new Subsidiary or new Foreign Subsidiary created or acquired after the creation or perfection of pledges of or security interests inClosing Date, or the obtaining of title insurance or surveys with respect toas applicable, particular assets if and for so long as (i) if, in the reasonable judgment of the Administrative Agent, the cost difficulty, time and/or costs of creating or perfecting such pledges or a security interests interest in such assets property or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law Subsidiary (including any Law requiring mortgage, stamp or other tax) are excessive in relation to the approval or consultation benefits of any “works council” or similar entity before a such security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsLenders.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Edgen Group Inc.), Credit Agreement (Edgen Group Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to In the event that (i) the Borrower or any property acquired after the Closing Date by any Loan Party Restricted Subsidiary acquires or forms a Subsidiary that is intended not designated as an “Unrestricted Subsidiary” in accordance with Section 8.19 or (ii) any Restricted Subsidiary ceases to be subject to an Immaterial Subsidiary, the Lien created by any of the Collateral Documents but is not so subject, Borrower shall promptly (and in any event within 60 twenty (20) days after thereof (or such later date as agreed by the acquisition thereofAdministrative Agent in its sole discretion), (A) (i) cause such Subsidiary to execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements a supplement to the relevant Guarantee and Collateral Documents or Agreement and such other documents Security Instruments (in proper form for filing, registration or recordation, as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (iiapplicable) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be are reasonably requested by the Administrative Agent. The Borrowers shall otherwise , and take such commercially reasonable actions and execute and/or deliver necessary or reasonably advisable to the Collateral Agent such documents as grant to the Administrative Agent for the benefit of the Secured Parties a first priority, perfected Lien (except for Permitted Liens) on all of the tangible and intangible Property of such Restricted Subsidiary that constitutes Collateral under the Guarantee and Collateral Agreement and all Rights of Way, fee-owned real property, and leased real property of such Restricted Subsidiary, (B) cause the owner of the Equity Interests in such Subsidiary to pledge such Equity Interests (including, without limitation, delivery of original certificates evidencing the Equity Interests, if any, of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof), and (C) cause such Restricted Subsidiary or the Collateral Agent other pledgor to execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably require to confirm be requested by the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired propertiesAdministrative Agent.
(b) With The Borrower will at all times cause all of the tangible and intangible Property of each Loan Party that constitutes Collateral under the Guarantee and Collateral Agreement to be subject to a first priority perfected Lien (except for Permitted Liens) pursuant to the Security Instruments.
(c) If, during any calendar quarter, the Borrower or any other Loan Party acquires any fee-owned real property, Rights of Way or leased real property (with respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Dateforegoing, promptly (and in any event within 60 days after such Person becomes a Subsidiary) excluding, (i) deliver fee-owned real property, Rights of Way or leased real property of less than $1,000,000 individually (provided that the aggregate value of all such fee-owned real property, Rights of Way, and leasehold interests so excluded shall not exceed $10,000,000 at any time; and provided further that Property relating to the Collateral Agent the certificatessame gathering or pipeline system, if any, representing all facility or project shall be aggregated for purposes of the Equity Interests above individual and aggregate thresholds) and (ii) leasehold interests not in respect of the Midstream Properties, Material Projects or other capital projects of the Borrower and its Restricted Subsidiaries), the Borrower shall, or shall cause such other Loan Party to, within sixty (60) days after the end of such Subsidiary owned calendar quarter (or such later date as agreed by such Loan Party, together with undated stock powers or other appropriate instruments the Administrative Agent in its sole discretion): (A) provide copies of transfer executed and delivered in blank by a duly authorized officer any applicable recorded Deeds and/or Rights of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, Way to the extent applicable Administrative Agent and permitted under foreign laws, rules or regulationsexecute and deliver a first priority (subject only to Excepted Liens) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes Mortgage in favor of the Collateral Administrative Agent on behalf for the benefit of the Secured Parties Parties, covering such Property; (B) provide the Administrative Agent with (1) (x) title information in form and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable substance satisfactory to the Administrative Agent covering such Properties and/or (y) to the extent requested by the Administrative Agent, title and extended coverage insurance covering such Property in an amount equal to the purchase price of such Property (or such comparable documentation to become other amount as shall be reasonably specified by the Administrative Agent) as well as a Subsidiary Guarantor current ALTA survey thereof, together with a surveyor’s certificate and a joinder agreement to (2) any consents or estoppels reasonably deemed necessary or advisable by the applicable Collateral Documents (including Administrative Agent in connection with such Mortgage, each of the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction foregoing in form and substance reasonably satisfactory to the Administrative Agent, and ; (BC) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably if requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered deliver to the Collateral AgentAdministrative Agent legal opinions, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary opinions shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary form and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiarysubstance, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agentand from counsel, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent Agent; and Collateral Agent (a “Mortgage”D) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance such Property constitutes Improved Mortgaged Property, deliver to the Administrative Agent a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of Improved Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall relating thereto), and otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agentcomply with Section 8.07(b) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and Property to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsapplicable.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Riviera Resources, Inc.), Credit Agreement (Riviera Resources, LLC)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Original Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and (x) if acquired in connection with the netASPx Transactions, not later than the Effective Date and (y) in any event other event, within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Original Closing Date, promptly (and (x) if acquired in connection with the netASPx Transactions, not later than the Effective Date and (y) in any event other event, within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Original Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Original Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, and (ii) other than in the case of any leased Real Property acquired at the time of consummation of the netASPx Transactions, and otherwise unless the Administrative Agent waives such requirement, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $250,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Borrower may designate any Subsidiary acquired or formed after the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long Original Closing Date as (i) in the reasonable judgment of a Non-Guarantor Subsidiary by written notice to the Administrative Agent; provided, however, that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the cost aggregate (other than any Foreign Subsidiary that is not required to take the actions specified in Section 5.11(b)(ii) by operation of creating the last sentence of Section 5.11(b)) not otherwise subject to Section 5.11(b) has assets with either a book value or perfecting such pledges fair market value in excess of $250,000, then Borrower shall, and shall cause one or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall be excessive in view Subsidiaries to, comply with Section 5.11(b) within the time frames set forth therein so that no Non-Guarantor Subsidiary or group of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests Non-Guarantor Subsidiaries in the assets aggregate holds property having either a book value or fair market value in excess of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents$250,000.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Navisite Inc), Credit Agreement (Navisite Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 At the request of the Administrative Agent, the Parent and Section 6.13(bthe Borrower shall, and shall cause the other Loan Parties to, grant, within thirty (30) days of delivery of such request (or such later date as the Administrative Agent may agree), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent as security for the Secured Obligations a Lien, with the priorities established by the DIP Order, on additional Oil and Gas Properties not already subject to a Lien of the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent Security Instruments or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit DIP Order. All such Liens will be created and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, perfected by and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Lawthe provisions of deeds of trust, including the filing of security agreements and financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsSecurity Instruments and/or DIP Order, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the Collateral Agentforegoing, if any Subsidiary grants a Lien on its Oil and Gas Properties pursuant to Section 8.14(a) in respect and such Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.14(b).
(b) Parent and the Borrower shall promptly cause each newly created or acquired Subsidiary to guarantee the Secured Obligations, including pursuant to a supplement or joinder hereto. In connection with any such guarantee, Parent and the Borrower shall, or shall cause (i) such Subsidiary to execute and deliver such guarantee or joinder and (ii) the owners of the Equity Interests of such MortgageSubsidiary to pledge all of the Equity Interests of such new Subsidiary (including delivery of original stock certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and to execute and deliver such other additional closing documents and certificates as shall reasonably be requested by the Administrative Agent.
(c) In the event that any Loan Party becomes the direct owner of a Domestic Subsidiary, then the Loan Party shall promptly pledge 100% of all the Equity Interests of such Domestic Subsidiary, in each case, that are owned by such Loan Party in accordance with the priorities established by the DIP Order (which for the sake of clarification means the Loan Parties shall not be permitted to deliver original stock certificates, if any, evidencing such Equity Interests to any Person other than the Revolving Agent).
(d) The foregoing shall not require Borrower hereby guarantees the creation payment of all Secured Obligations of each Loan Party (other than the Borrower) and absolutely, unconditionally and irrevocably undertakes to provide such funds or perfection of pledges of or security interests in, or other support as may be needed from time to time to each Loan Party (other than the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (iBorrower) in order for such Loan Party to honor its obligations under the reasonable judgment of other Security Instruments and the Administrative AgentDIP Order (provided, however, that the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets Borrower shall only be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions liable under this Section 6.11 by a Person if and to the extent that such action would (a8.14(d) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection maximum amount of security interests in such liability that can be hereby incurred without rendering its obligations under this Section 8.14(d), or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by under this Agreement or any Loan Document, as it relates to such other Loan Parties, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of the Collateral DocumentsBorrower under this Section 8.14(d) shall remain in full force and effect until Payment in Full.
(e) Notwithstanding If the foregoing provisions of this Section 6.11 or anything in this Agreement Borrower or any other Loan Document Subsidiary intends to grant any Lien on any Property to secure the Revolving Debt, then the Borrower will provide at least fifteen (15) days’ prior written notice thereof to the contraryAdministrative Agent and the Borrower will, Liens required and will cause its Subsidiaries to, grant to be granted from time the Administrative Agent to time secure the Secured Obligations a Lien subordinate to only that of the Senior Liens, if any, on the same Property pursuant to Section 6.11 shall be subject Security Instruments in form and substance reasonably satisfactory to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, Administrative Agent to the extent appropriate in a prior Lien has not already been granted to the applicable jurisdictionAdministrative Agent on such Property. In connection therewith, the Borrower shall, or shall cause its Subsidiaries to, execute and deliver such other additional closing documents, certificates and legal opinions as agreed between shall reasonably be requested by the Collateral Agent Administrative Agent. The Borrower will cause any Subsidiary and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document Person guaranteeing any Revolving Debt to contemporaneously guarantee the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessSecured Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Sundance Energy Inc.), Restructuring Support Agreement (Sundance Energy Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property (other than any Excluded Property) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereofthereof or such later date as may be agreed to by Administrative Agent) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that, except with respect to Norcraft Canada, no action shall be required hereunder to create or perfect any security interest in any property under the law of any jurisdiction other than the United States, except as otherwise agreed in writing by the Borrower; provided, further, no action shall be required with respect to Norcraft Canada under the law of any jurisdiction other than the United States and Canada. The Borrowers Subject to the foregoing, Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate (other than any Excluded Subsidiary), promptly (and in any event within 60 30 days after such Person person becomes a SubsidiarySubsidiary or such later date as may be agreed to by Administrative Agent) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party(other than any Excluded Equity Interests), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Excluded Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions UCC and, as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which applicable for any Canadian Guarantor that is designated as a Lien is required to be created, Subsidiary Guarantor pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b5.10(d), PPSA financing statements; provided that (dexcept as set forth in Section 5.10(a) above or Section 5.10(d) below (as applicable), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary action shall be required hereunder to take create or perfect any security interest in any property under the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock law of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of jurisdiction other than the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such SubsidiaryUnited States, except that any such Equity Interests constituting “stock entitled to vote” within as otherwise agreed in writing by the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Borrower.
(c) Promptly grant to the Collateral Agent, within 60 days of any acquisition thereof after the acquisition thereofClosing Date or such later date as may be agreed to by Administrative Agent, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2,000,000, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage); provided that, except with respect to the owned Real Property of Norcraft Canada set forth on Schedule 8(a) to the Perfection Certificate, no action shall be required hereunder to create or perfect any security interest in any Real Property under the law of any jurisdiction other than the United States, except as otherwise agreed in writing by the Borrower; provided, further, no action shall be required with respect to Norcraft Canada under the law of any jurisdiction other than the United States and Canada.
(d) The foregoing shall not require Notwithstanding anything to the creation or perfection of pledges of or security interests incontrary herein, or the obtaining of title insurance or surveys with respect toBorrower may from time to time designate, particular assets if and for so long in its sole discretion, any Excluded Subsidiary as (i) in the reasonable judgment of a Subsidiary Guarantor by written notice to the Administrative Agent. Upon any such designation, the cost Borrower shall comply with the requirements of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (iiSection 5.10(b) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent person (disregarding for such purpose any exclusion that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsapply to such person as an Excluded Subsidiary).
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Norcraft Companies, Inc.), Credit Agreement (Norcraft Companies Lp)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereof, provided that the Administrative Agent may agree to an extension thereof in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)SECTION 5.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct U.S. Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a U.S. Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such U.S. Subsidiary owned by such Loan PartyParent or any of its Subsidiaries, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such U.S. Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new U.S. Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a U.S. Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the U.S. Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary (other than a Canadian Subsidiary), execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the U.S. Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(bSECTION 5.10(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(bSECTION 5.10(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a NON DE MINIMIS increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; PROVIDED that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(bSECTION 5.10(b).
(c) With respect to any person that is or becomes a Canadian Subsidiary after the Closing Date, promptly (and in any event within 30 days after such person becomes a Canadian Subsidiary)
(i) deliver to the Collateral Agent, a pledge agreement in a form reasonably satisfactory to the Collateral Agent, the certificates, if any, representing all of the Equity Interests of such Canadian Subsidiary owned by Canadian Borrower or a Canadian Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Canadian Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause such new Subsidiary (A) to execute a Joinder Agreement or such comparable documentation to become a Canadian Subsidiary Guarantor and a joinder agreement to the Canadian Security Agreement, substantially in the form annexed thereto or, in the case of a Subsidiary not organized under the laws of Canada, execute a security agreement compatible with the laws of such Subsidiary's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by such security document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent.
(d) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such U.S. Loan Party as is acquired by such U.S. Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such U.S. Loan Party which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)SECTION 6.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Ply Gem Industries Inc), Credit Agreement (Ply Gem Industries Inc)
Additional Collateral; Additional Guarantors. At the Borrowers’ expense, take all action either necessary or as reasonably requested by the Administrative Agent or the Collateral Agent to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Subject to this Section 6.11 Upon (i)(x) the formation or acquisition of any new direct or indirect wholly owned Subsidiary (in each case, other than an Excluded Subsidiary) by the Lead Borrower (including, without limitation, upon the formation of any Subsidiary that is a Delaware Divided LLC and Section 6.13(bis not otherwise an Excluded Subsidiary), (y) any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or (z) the designation in accordance with respect to Section 6.14 of an existing direct or indirect wholly owned Subsidiary (other than an Excluded Subsidiary) as a Restricted Subsidiary or (ii) the acquisition of any property acquired after the Closing Date by any Loan Party, which property is contemplated under the Collateral and Guarantee Requirement but is not automatically subject to a valid and perfected (or equivalent under foreign law) Lien in favor of the Collateral Agent for the benefit of the Secured Party that is intended to be under the then existing Collateral Documents ((x) other than Excluded Assets and (y) in the case of any Loan Party organized outside of the United States, subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) Agreed Security Principles):
(i) within sixty (60) days after such formation, acquisition, cessation or designation, or such longer period as the Administrative Agent may agree in writing in its discretion, notify the Administrative Agent thereof and:
(A) cause each such Subsidiary or Loan Party to duly execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall (as appropriate) joinders to this Agreement as Guarantors, Security Agreement Supplements, Intellectual Property Security Agreements, Mortgages, a counterpart of the Intercompany Note, each Intercreditor Agreement, if applicable, and other security agreements and documents (including, with respect to such Mortgages, the documents listed in clause (g) of the definition of “Collateral and Guarantee Requirement”), as reasonably deem necessary or advisable requested by and in form and substance reasonably satisfactory to grant the Administrative Agent (consistent to the extent applicable, with the, Security Agreement and other security agreements in effect on the Closing Date), in each case granting Liens required by the Collateral and Guarantee Requirement and, with respect to any Foreign Security Documents, the Agreed Security Principles, as applicable;
(B) cause each such Subsidiary (and the parent of each such Subsidiary that is a Guarantor) to deliver any and all certificates representing Equity Interests (to the extent certificated) and intercompany notes (to the extent certificated) that are required to be pledged pursuant to the Collateral Agentand Guarantee Requirement and the Agreed Security Principles, for its benefit and for as applicable, accompanied by (if relevant in the benefit of the other Secured Partiesapplicable jurisdiction), a Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required accompanied by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed in blank;
(C) take and delivered in blank by a duly authorized officer of the holder(s) cause such Subsidiary and each direct or indirect parent of such Equity InterestsSubsidiary or other Loan Party, as applicable, to take whatever action (including the recording of Mortgages, the filing of Uniform Commercial Code financing statements or any comparable filing under any applicable jurisdiction and Intellectual Property Security Agreements, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments delivery of transfer executed stock and delivered membership interest certificates) as may be necessary in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor reasonable opinion of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially vest in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause (or in any representative of the Lien created Collateral Agent designated by the applicable Collateral Documents (including the Security Agreementit) to be duly valid and perfected Liens to the extent required by the Collateral and Guarantee Requirement and, with respect to any Foreign Security Documents, the Agreed Security Principles, as applicable, and to otherwise comply with the requirements of the Collateral and Guarantee Requirement and, with respect to any Foreign Security Documents, the Agreed Security Principles, as applicable;
(ii) as promptly as practicable after the request therefor by the Administrative Agent or Collateral Agent, deliver to the Collateral Agent with respect to each Material Real Property, any existing title reports, abstracts, surveys, appraisals or environmental assessment reports, to the extent available and in the possession of the Loan Parties or their respective Subsidiaries; provided, however, that there shall be no obligation to deliver to the Administrative Agent any existing environmental assessment report or appraisal whose disclosure to the Administrative Agent would require the consent of a Person other than the Loan Parties or one of their respective Subsidiaries, where, despite the commercially reasonable efforts of the Loan Parties or their respective Subsidiaries to obtain such agreement in accordance with all applicable Lawconsent, including the filing of financing statements in such jurisdictions as may consent cannot be obtained; and
(iii) if reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding , within sixty (60) days after such request (or such longer period as the foregoingAdministrative Agent may agree in writing in its discretion), (1) the Equity Interests required to be delivered deliver to the Collateral Agent, or on which a Lien is required Agent any other items necessary from time to be created, pursuant time to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of satisfy the definition of Excluded Subsidiary Collateral and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) Guarantee Requirement with respect to Equity Interests perfection and existence of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply security interests with respect to (A) voting stock property of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is Guarantor acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form Collateral and substance to Guarantee Requirement and the Agreed Security Principles, as applicable, but not specifically covered by the preceding clauses (i) or (ii) or clause (b) below.
(i) Not later than forty-five (45) days (or such longer period as the Administrative Agent may agree in writing in its discretion) after the later of (x) confirmation from the Lenders that flood due diligence and flood insurance compliance as required by Section 6.07 hereto has been completed and (y) forty-five (45) days after the acquisition by any Loan Party (including, without limitation, any acquisition pursuant to a Delaware LLC Division) of any Material Real Property as determined by the Lead Borrower (acting reasonably and in good faith) that is required to be provided as Collateral pursuant to the Collateral Agent and shall constitute valid Guarantee Requirement, cause such property to be subject to a Lien and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens Mortgage in favor of the Collateral Agent required for the benefit of the Secured Parties and take, or cause the relevant Loan Party to take, such actions as shall be granted pursuant necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, in each case to the Mortgages extent required by, and all taxessubject to the limitations and exceptions of, fees the Collateral and other charges payable in connection therewith shall be paid in full. Such Loan Party shall Guarantee Requirement and to otherwise take such commercially reasonable actions comply with the requirements of the Collateral and execute and/or Guarantee Requirement; and (ii) as promptly as practicable after the request therefor by the Administrative Agent or Collateral Agent, deliver to the Collateral Agent with respect to each such documents as acquired Material Real Property, any existing title reports, abstracts, surveys, appraisals or environmental assessment reports, to the Administrative Agent or extent available and in the Collateral Agent shall reasonably require to confirm the validity, perfection and priority possession of the Lien of any existing Mortgage Loan Parties or new Mortgage against such after-acquired Real Property (including a Title Policytheir respective Subsidiaries; provided, a Survey and local counsel opinion (in form and substance reasonably satisfactory however, that there shall be no obligation to deliver to the Administrative Agent and any existing environmental assessment report or appraisal whose disclosure to the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not Administrative Agent would require the creation consent of a Person other than the Loan Parties or perfection one of pledges of or security interests intheir respective Subsidiaries, or where, despite the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on or their respective Subsidiaries to obtain such date) where it reasonably determinesconsent, in consultation with the Borrowers, that perfection such consent cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsobtained.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect and this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Effective Date by any Loan Party that is of the same type as that included as “Pledged Collateral” in the Security Agreement and that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (which, for the avoidance of doubt, does not include assets held by any Excluded Subsidiary or Foreign Subsidiary), promptly (and in any event within 60 30 days after the acquisition thereofthereof (or such longer period of time not to exceed an additional 30 days as may be permitted by written consent of the Administrative Agent)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) at the request of the Administrative Agent or Collateral Agent, take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With Subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect and the Borrower’s election under Section 5.18, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party (other than an Excluded Subsidiary or Foreign Subsidiary) after the Closing Effective Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver or such longer period of time not to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned exceed an additional 30 days as may be permitted by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank written consent by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiAdministrative Agent)) cause any such new Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding .
(c) Subject to the foregoingterms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, and the Borrower’s election under Section 5.18, with respect to any new Subsidiary (1other than an Excluded Subsidiary or Foreign Subsidiary) created or acquired after the Equity Interests required Effective Date by any Borrower or any Subsidiary other than an Excluded Subsidiary (which, for the purposes of this paragraph (c), shall include any existing Subsidiary that ceases to be delivered an Excluded Subsidiary) or Foreign Subsidiary, promptly (i) execute and deliver to the Administrative Agent such amendments to the Security Agreement as the Administrative Agent deems, in its reasonable discretion, to be necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected second lien security interest in the Equity Interests of such new Subsidiary that is owned by any Loan Party, (ii) either (A) to the extent any Permitted Secured Term Loan Facility is then outstanding, deliver to the Term Loan Administrative Agent the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Subsidiary, and (B) otherwise, deliver to the Collateral Agent the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the relevant Subsidiary and (iii) cause such new Subsidiary (other than an Excluded Subsidiary or Foreign Subsidiary) (A) to execute a Joinder Agreement or such comparable documentation to become a Guarantor, and a joinder agreement to the Security Agreement, substantially in the form annexed thereto, (B) to take such actions reasonably necessary or advisable to grant to the Collateral Agent for the benefit of the Lenders a perfected security interest in the Collateral described in the Security Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Security Agreement or by law or as may be reasonably requested by the Collateral Agent, and (C) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance comparable to the applicable opinions delivered on the Effective Date and shall be from counsel reasonably satisfactory to the Administrative Agent.
(d) Subject to the terms and conditions of the Intercreditor Agreement and, to the extent applicable, any Term-ABL Intercreditor Agreement then in effect, with respect to any fee interest in any real property having a value (together with improvements thereof or thereon) of at least $5,000,000 (1) acquired after the Effective Date by the Borrower or any Subsidiary which is not an Excluded Subsidiary or a Foreign Subsidiary or (2) owned by any Subsidiary that becomes a party to the Security Agreement (in each case other than (x) any such real property subject to a Lien is required to be createdexpressly permitted by Section 6.2(d) and (y) real property acquired by any Excluded Subsidiary or Foreign Subsidiary), pursuant to clause the Borrower or such Subsidiary shall promptly (i) execute and deliver a Mortgage, in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (ii) deliver to the Administrative Agent, a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties or parcels thereof with improvements thereon (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower in the event any portion of such Mortgaged Properties are located in a special flood hazard area), and (iii) deliver to the Administrative Agent such other documentation related to such real property as the Administrative Agent may reasonably request. For the avoidance of doubt, this Section 6.11(bclause (d) shall not include apply to the North Yard or the West Yard.
(e) At any Equity Interests time that a Trigger Event shall have occurred, at the request of the Administrative Agent, the Borrower and each other Loan Party shall, in the reasonable discretion of Borrower: (a) (i) execute and deliver to the Collateral Agent such agreements and instruments (or amendments or supplements to the Security Agreement) as the Administrative Agent may deem necessary or advisable to grant to the Collateral Agent a Foreign Subsidiary that perfected first priority Lien on all Securities Accounts, Commodities Accounts and other investment accounts of the Loan Parties (the foregoing accounts, collectively, the “ABL/SOA Investment Accounts”), and on any and all cash, Cash Equivalents, checks, negotiable instruments, security entitlements, securities and other financial assets or other property or investment property credited to or held therein (all of the foregoing, the “Investment Assets”), and (ii) deliver, or cause to be delivered, to the Administrative Agent a Control Agreement duly authorized, executed and delivered by each bank or financial institution where a Securities Account for the benefit of any Loan Party is an Excluded Subsidiary by reason of clauses maintained or (b)) liquidate all Investment Assets credited to or held in any and all ABL/SOA Investment Accounts and deposit or cause the deposit or credit of the proceeds thereof into the Collection Account for application and distribution in accordance with Section 2.22; provided that, (d), any such documentation delivered by any Loan Party pursuant to this Section 5.10(e) shall provide that any Lien on assets granted pursuant to this Section 5.10(e) shall be released and the Loan Parties’ obligations with respect to such Trigger Event under this Section 5.10(e) shall cease upon the cure or waiver of such Trigger Event.
(f) Notwithstanding anything in this Agreement or (g) of any Security Document to the definition of Excluded Subsidiary contrary, in no event shall the Collateral include, and (2) no Excluded Subsidiary Loan Party or Unrestricted any Subsidiary shall be required to take any action to create, grant or perfect a security interest in, (i) any property or assets that are subject to a jurisdiction other than the actions specified in clause United States, any state thereof and the District of Columbia, (ii) of this Section 6.11(b); provided any properties and assets as to which the Administrative Agent determines in its reasonable discretion that the exception set forth costs of obtaining such security interest are excessive in clause (1) with respect relation to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) the value of the definition of security to be afforded thereby or (iii) Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation Property (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of Security Agreement), other than any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required Deposit Account which ceases to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)an Excluded Deposit Account.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.), Revolving Credit and Guaranty Agreement (Philadelphia Energy Solutions Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property owned or acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereofthereof or such later time as the Required Lenders may agree) cause the Collateral and Guarantee Requirement to be satisfied with respect to such property, including by (i) execute executing and deliver delivering to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent Required Lenders shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Collateral Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative AgentRequired Lenders. The Borrowers Holdings shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent Required Lenders shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties. Notwithstanding the foregoing, any required filings with the United States Patent and Trademark Office and United States Copyright Office shall be made within 30 days after the acquisition of the related property is required to be reported pursuant to Section 5.01(h).
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and promptly, and, in any event event, within 60 30 days after such Person person becomes a Subsidiary, notify the Administrative Agent and Collateral Agent thereof in writing (specifying, if such Subsidiary is a Designated Subsidiary) (i) deliver to and cause the Collateral Agent the certificates, and Guarantee Requirement to be satisfied with respect to such Subsidiary (if any, representing all of the it is a Designated Subsidiary) and with respect to any Equity Interests in or Indebtedness of such Subsidiary owned by such any Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereofthereof (unless sooner disposed of in an Asset Sale permitted by Section 6.06 or a Sale and Leaseback Transaction permitted by Section 6.03), or, in the case of any, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party (1) as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, and (2) each Real Property identified as “Owned Real Property” on Schedule 17 to the Perfection Certificate dated the Closing Date, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent (in each case, at the direction of the Required Lenders) and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent at the direction of Required Lenders. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent Required Lenders shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle policy, a Survey Survey, a life of loan flood hazard determination and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral AgentAgent (in each case at the direction of the Required Lenders) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Global Geophysical Services Inc), Second Lien Credit Agreement (Global Geophysical Services Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and XxxxxxxNxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Nielsen CO B.V.), Credit Agreement (Nielsen Holdings N.V.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents Within sixty (60) days (or such other documents longer period as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition and (B) each semi-annual period ending on June 30 or December 31, beginning with the Collateral Agent shall reasonably deem necessary or advisable to grant to period beginning on the Collateral Agentdate hereof and ending on June 30, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder2019, and (ii) take the closing date of any Permitted Acquisition, the Borrower shall cause the Credit Parties to provide to the Administrative Agent, without duplication, copies of all commercially reasonable actions necessary recorded Deeds and Rights of Way with respect to cause its Midstream Properties or other real properties that have been received or otherwise acquired by any Credit Party as a result of such Lien Material Acquisition or Permitted Acquisition or during such period, as applicable, and, subject to be duly perfected the limitations in Section 8.14(d), to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, other real properties, Deeds and Rights of Way in favor of the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent. In connection with the foregoing, to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver , for owned real property assets having an individual fair market value or purchase price, as applicable, in excess of $25,000,000, subject to the Collateral Agent limitations in Section 8.14(d), the Borrower shall deliver, or shall cause to be delivered, (x) title and extended coverage insurance covering such documents real property subject to the additional Security Instruments in an amount equal to the purchase price of such interest in real property (or such other lesser amount as shall be reasonably specified by the Administrative Agent), as well as a current ALTA survey thereof, together with a surveyor’s certificate, (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validityin connection with such Security Instruments, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, but only to the extent applicable obtainable by the Borrower through the use of commercially reasonable efforts and permitted under foreign lawswithout the payment of any fee, rules charge or regulationsother costs (other than de minimis fees, charges or other costs paid to the third-party providers of such consents or estoppels) orby the Borrower in connection therewith, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor each of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction foregoing in form and substance reasonably satisfactory to the Administrative Agent, and (Bz) legal opinions, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to take the Administrative Agent.
(b) The Parent and the Borrower shall (i) cause each Restricted Subsidiary that is not a party to the Guaranty and Security Agreement to, promptly, but in any event no later than thirty (30) days after the formation or acquisition (or similar event) of such Restricted Subsidiary, execute and deliver a supplement to the Guaranty and Security Agreement, (ii) pledge, or cause the applicable Restricted Subsidiary or Restricted Subsidiaries to pledge, all actions necessary or advisable in the opinion of the Administrative Agent or Equity Interests of such new Restricted Subsidiary (including, without limitation, delivery of any stock certificates evidencing the Collateral Agent to cause the Lien created Equity Interests of such Restricted Subsidiary, together with an appropriate undated stock power for each certificate duly executed in blank by the applicable Collateral Documents registered owner thereof, if applicable) and (including the Security Agreementiii) execute and deliver, and cause each Restricted Subsidiary to execute and deliver, such other additional closing documents, certificates and legal opinions as shall reasonably be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent.
(c) Subject to Section 8.18, the Parent and the Borrower will in connection with any deposit account, commodities account, or any securities account (other than an Excluded Account for so long as it is an Excluded Account) established, held or maintained by a Credit Party after the Effective Date, cause such deposit account, commodities account, or securities account (in each case, other than an Excluded Account for so long as it is an Excluded Account) to be subject to a Control Agreement within thirty (30) days of the establishment thereof or longer if the Administrative Agent or the Collateral Agentapproves in its sole discretion and at all times thereafter. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, for each deposit or on which securities account that becomes a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests deposit or securities account of a Foreign Restricted Subsidiary that is an as a result of a Permitted Acquisition (in each case, other than Excluded Subsidiary by reason of clauses (bAccounts), the Parent Guarantor will, by no later than sixty (d), (f60) or (g) of days after the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock date of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any Permitted Acquisition or such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents later date as the Administrative Agent may agree in its sole discretion, either (a) cause such account to be subject to a Control Agreement, or (b) close such account and transfer any funds therein to an account that otherwise meets the Collateral Agent shall reasonably require to confirm the validity, perfection and priority requirements of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)this Section 8.14.
(d) The foregoing shall not require Notwithstanding anything to the creation contrary contained herein or perfection in any other Loan Document, (i) as of pledges of or security interests inthe Effective Date, no Building (as defined in the applicable Flood Insurance Regulations), Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulations), or the obtaining of title insurance land situated under any such Building or surveys with respect to, particular assets if and for so long as Manufactured (iMobile) Home that is owned by any Credit Party is included in the reasonable judgment of the Administrative AgentCollateral and no Building or Manufactured (Mobile) Home shall be encumbered by any Security Instrument, other than, in each case, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or Headquarters Building and (ii) other than the creation Headquarters Building, the Credit Parties shall not be required to mortgage any Building or perfection Manufactured (Mobile) Home, or the lands situated under any such Building or Manufactured (Mobile) Home, unless and until the aggregate fair market value of all such pledges or security interests would violate third party contracts or applicable Law unmortgaged Buildings, Manufactured (including any Law requiring Mobile) Homes, and the approval or consultation of any “works council” or similar entity before a security interest can be granted, unmortgaged land situated under such Buildings and Manufactured (Mobile) Homes exceeds $25,000,000 (in which case the Borrowers Credit Parties shall use their commercially reasonable efforts promptly cause the aggregate fair market value of such unmortgaged Buildings, Manufactured (Mobile) Homes, and unmortgaged land situated underneath such unmortgaged Buildings and Manufactured (Mobile) Homes to obtain such approvalbecome less than $25,000,000 by delivering the applicable and requisite Security Instruments and Flood Deliverables in accordance with Section 8.13(b)); provided, unless that the Administrative Agent Borrower shall determine in its reasonable judgment that such pledge or security interest not, and shall not be required with respect permit any of its Restricted Subsidiaries to, permit to such assets). In additionexist any Lien on any unmortgaged Building, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would Manufactured (aMobile) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in Home or the obtaining of title insurance with respect to particular assets unmortgaged land situated underneath any such unmortgaged Building or Manufactured (including extensions beyond Mobile) Home except the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or Excepted Liens and any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to permitted under Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this 9.03 hereof (other than Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness9.03(d)).
Appears in 2 contracts
Samples: Credit Agreement (Rattler Midstream Lp), Credit Agreement (Rattler Midstream Lp)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property Property acquired after the Closing Date by any Borrower or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Property described in paragraph (b) of this subsection) promptly (and in any event within 60 30 days after the acquisition thereof) thereof provided Administrative Agent has provided all joinder agreements to the applicable Security Documents necessary for the Loan Parties to comply herewith): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property Property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Wholly Owned Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after or any immaterial or special-purpose Subsidiary to which the Closing Date, Administrative Agent shall agree the provisions of this paragraph (b) will not apply) promptly (and in any event within 60 30 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned (provided that with respect to any first-tier Foreign Subsidiary of a Borrower or a Subsidiary organized in a State of the United States, in no event shall more than 65% of the Equity Interests of any such Foreign Subsidiary be subject to any Lien or pledged under any Security Document if such pledge would have an adverse tax impact on Borrowers as determined by such Loan PartyBorrowers), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseSubsidiary, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary if such pledge would have an adverse tax impact on Borrowers as determined by Borrowers) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially Agreement in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction thereto which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing; provided, (1) the Equity Interests required to be delivered to the Collateral Agenthowever, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)5.10, a Subsidiary organized in the United States or any political subdivision thereof shall nonetheless be treated as a Foreign Subsidiary if (i) it owns any stock or other Equity Interests of an entity treated as a controlled foreign corporation for U.S. federal tax purposes, (ii) substantially all of its assets consist of stock or other Equity Interests of Foreign Subsidiaries, and (iii) it was organized for the principal purpose of holding such stock or other Equity Interests.
(c) Promptly Each Loan Party will promptly grant to the Collateral Administrative Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage Lien on each parcel of owned Real Property owned in fee by of such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, as additional security for the Obligations (unless the subject property Property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderreasonably acceptable to the Administrative Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 2 contracts
Samples: Credit Agreement (Bearingpoint Inc), Credit Agreement (Bearingpoint Inc)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject(as specified in this Section 5.11), promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the applicable Administrative Agent and the applicable Collateral Agent Agents such amendments or supplements to the relevant Collateral Security Documents or such other documents as the such Administrative Agent or the such Collateral Agent Agents shall deem reasonably deem necessary or advisable to grant to the such Collateral AgentAgents, for its their benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the such Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the applicable Collateral Agent Agents such documents as the applicable Administrative Agent or the such Collateral Agent Agents shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) pledge and deliver to the applicable Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary, provided that with respect to any Foreign Subsidiary owned by such Loan Partyno more than 65% of the Equity Interests of any first-tier Foreign Subsidiary of US Borrowers or any US Subsidiary (and no stock of any other Foreign Subsidiary) shall be so pledged and delivered as security for the US Obligations, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and (ii)(A) deliver to the US Collateral Agent as security for the US Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a US Borrower or US Subsidiary and (B) deliver to the Canadian Collateral Agent as security for the Canadian Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a Canadian Borrower or Foreign Subsidiary, in each case, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiiii) cause any (A) if such new Subsidiary (A) is a US Subsidiary, cause such new US Subsidiary to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of (B) if such new Subsidiary is a Foreign Subsidiary, cause such new Foreign Subsidiary to execute and deliver a pledge agreement, security agreement compatible with and guarantee substantially in the Laws form of such Foreign Subsidiary’s jurisdiction in form the applicable Canadian Pledge Agreement, Canadian Security Agreement and substance reasonably satisfactory to the Administrative Agent, Canadian Guaranty and (BC) cause to take all actions necessary or advisable in the opinion of the applicable Administrative Agent or the applicable Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the applicable Administrative Agent or the applicable Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the applicable Collateral AgentAgents, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party that is a US Borrower or US Subsidiary, as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 5,000,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the applicable Administrative Agent Agents and the applicable Collateral Agent Agents and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Liens permitted hereunderor other Liens reasonably acceptable to the such Collateral Agent. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the applicable Collateral Agent Agents required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the applicable Collateral Agent Agents such documents as the applicable Administrative Agent or the such Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the such Administrative Agent and the such Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation Borrowers may designate any Subsidiary acquired or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond formed after the Closing Date for as a Non-Guarantor Subsidiary by written notice to the perfection applicable Administrative Agent; provided, however, that if at any time any Non-Guarantor Subsidiary or group of security interests Non-Guarantor Subsidiaries in the aggregate (other than any Foreign Subsidiary not otherwise subject to Section 5.11(b)) has assets with either a book value or fair market value in excess of $1.0 million, then the Loan Parties on Borrowers shall, and shall cause one or more of such dateSubsidiaries to, comply with Section 5.11(b) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by within the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations frames set forth therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the Collateral Documents as aggregate holds property having either a book value or fair market value in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions excess of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness$1.0 million.
Appears in 2 contracts
Samples: Credit Agreement (Linens N Things Inc), Credit Agreement (LNT Leasing II, LLC)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary after the Closing Date (other than an Excluded Collateral Subsidiary), or any Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Loan Party after by operation of the Closing Dateprovisions of Section 5.11(d), promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiarySubsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d)) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary that is a Wholly Owned Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement agreements to the applicable Collateral Security Documents (including the Security Agreement)in each case, substantially in the form annexed thereto, thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute a security agreement such other Security Documents (or joinder agreements) to the extent possible under and compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien Liens created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative 108 Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(bparagraph (b) shall not include any apply to the Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason (x) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of clauses Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and (b)y) any Joint Venture Subsidiary, (d)to the extent the terms of any applicable joint venture, (f) stockholders’, partnership, limited liability company or (g) similar agreement prohibits or conditions the pledging of its Equity Interests to secure the definition of Excluded Subsidiary Secured Obligations and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause paragraph (1b) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Aany Company listed on Schedule 5.11(b) voting stock to the extent any applicable Requirement of any Subsidiary that is Law prohibits it from becoming a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Loan Party.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15 million 5 million, and (ii) unless the Collateral Agent otherwise consents, and subject to obtaining any consent required from the applicable landlord and any applicable mortgagee (each of which the Loan Parties agree to use commercially reasonable efforts to obtain), each leased Real Property of such Loan Party which lease individually has a fair market value the Dollar Equivalent of which is at least $5 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid valid, perfected and enforceable perfected First Priority Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy (or title opinion satisfactory to the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests inIf, or the obtaining of title insurance or surveys with respect to, particular assets if at any time and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time after the Closing Date, Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 1% of the consolidated total assets of Canadian Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 1% of Consolidated EBITDA of Canadian Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to Section 6.11 shall be subject this Agreement, cause one or more of 109 such Subsidiaries to exceptions and limitations set forth in the become Loan Parties (notwithstanding that such Subsidiaries are, individually, Excluded Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding Subsidiaries) such that the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document condition ceases to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednesstrue.
Appears in 2 contracts
Samples: Credit Agreement (Novelis South America Holdings LLC), Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any personal property (other than real property leasehold interests) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements (prepared by the applicable Agent or its counsel) to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate in accordance with Section 6.14, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) the applicable Loan Party shall deliver to the Collateral Agent the certificates, if any, representing all of the such Subsidiary's Equity Interests of such Subsidiary owned by such Loan PartyParty holds, together with undated stock -90- powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Domestic Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral AgentAgent and (C) execute a Business Associate Agreement. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include more than 65% of any Equity Interests Voting Stock of a "first tier" Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b)created or acquired after the Closing Date, (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that 5.11(b) and (3) no HMO Subsidiary shall be required to take the exception set forth actions specified in clause (1ii) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent(and in any event, within 60 days of the acquisition thereof), (i) grant to the Collateral Agent a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1,000,000, and (ii) use its commercially reasonable efforts to grant to the Collateral Agent a security interest in and Mortgage on, unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $2,500,000 in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute legal and valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderor other Liens reasonably acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with With respect to any personal property (other than leasehold interests) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents (as specified in this Section 6.10) but is not so subjectsubject (other than Equity Interests in Foreign Subsidiaries not required to be pledged under Section 6.10(b)), promptly (and in any event within 60 15 days after the acquisition thereof, unless Agent agrees to a longer time period) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties. Notwithstanding the foregoing, Borrowers shall have no obligation to perfect Agent’s Liens on Intellectual Property outside the United States.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 15 days after such Person person becomes a Subsidiary, unless the Agent agrees to a longer time period) (i) pledge and deliver (with respect to Foreign Subsidiaries, to the Collateral extent permitted by law) to Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, provided that, with respect to any Foreign Subsidiary, no more than 65% of the Equity Interests of any first-tier Foreign Subsidiary of any Borrower or any Guarantor (and no stock of any other Foreign Subsidiary) shall be so pledged and delivered as security for the Secured Obligations, (ii) deliver to Agent as security for the Secured Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a Borrower or Guarantor, in each case, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiiii) cause any if such new Subsidiary (A) is a US Subsidiary, cause such new US Subsidiary to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Borrower or Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) cause to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, unless Agent otherwise agrees, within 60 15 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party that is a Borrower or US Subsidiary, as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder)Secured Obligations. Such Mortgages Liens shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law other Liens reasonably acceptable to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Agent may, in any instance, waive the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets collateral requirements set forth in this Section 6.10 if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of it reasonably determines that the benefits to be obtained by the Lenders therefrom or (ii) Secured Parties from the creation or perfection of such pledges or Liens and security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, provided for in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if 6.10 are not sufficiently more than the cost and to the extent that expense of obtaining such action would (a) go beyond the corporate or other powers of the Person concerned (Liens and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsinterests.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Revolving Credit Agreement
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.12, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary not required to be pledged pursuant to the last sentence of Section 5.12(b)), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Security Documents in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Subject to the terms of the Intercreditor Agreement, Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent (or its designated bailee or agent) the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation Joinder Agreement to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, Pledgor or, in the case of a Foreign Subsidiary, execute a security agreement document compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement Security Document in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a no Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this the preceding sentence, if, in the case of either subclause (A) or (B) of such clause (ii), doing so would constitute an investment of earnings in United States property under Section 6.11(b)956 (or a successor provision) of the Code, which investment would or could reasonably be expected to trigger a material increase in the net income of a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence such exceptions shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.12(b).
(c) Subject to the terms of the Intercreditor Agreement, with respect to any person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 30 days after such person becomes a Subsidiary) execute and deliver to the Collateral Agent (or its designated bailee or agent) (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary.
(d) Promptly grant to the Collateral Agent, Agent (and in any event within 60 45 days of the acquisition thereof, ) a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a value of at least $250,000 (which value shall be determined without regard to the value of the underlying Real Property), in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected second priority Liens subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Critical Homecare Solutions Holdings, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to In the event that the Borrower or any property acquired after the Closing Date by any Loan Party Subsidiary acquires or forms a subsidiary that is intended not designated as an Excluded Subsidiary in accordance with Section 8.15, or if the Borrower or any other Subsidiary causes any Subsidiary to be subject to guarantee the Lien created by any of Term Loan Facility, the Collateral Documents Borrower or its Subsidiary shall promptly, but is not so subject, promptly (and in any event within 60 30 days after (or such later date as the acquisition thereof) Administrative Agent may agree in its sole discretion), cause such Subsidiary to guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with any guaranty, the Borrower shall, or shall cause such Subsidiary to, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements a supplement to the relevant Guaranty and Collateral Documents or Agreement and such other documents Security Instruments (in proper form for filing, registration or recordation, as applicable) as are requested by the Administrative Agent or the Collateral Agent shall reasonably deem Agent, and take such actions necessary or advisable to grant to the Collateral Agent, for its benefit and Administrative Agent for the benefit of the other Secured PartiesParties a first priority, a perfected Lien (subject only to Excepted Liens and Liens permitted under Section 9.03(h)) on all of the tangible and intangible Property of such property subject to no Liens Subsidiary (other than Liens permitted hereunderde minimis Property excluded in the Administrative Agent’s sole discretion), (ii) cause the owner of the Equity Interests in such Subsidiary to pledge such Equity Interests (including, without limitation, delivery of original stock certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(b) The Borrower will at all times cause (i) all Material Real Property, and (ii) take all commercially reasonable actions necessary other tangible and intangible personal Property of the Borrower and each Subsidiary not covered by clause (a) above, including any Equity Interests in an Excluded Subsidiary, in each case to be subject to a Lien pursuant to the Security Instruments, except that, with respect to any Material Real Property acquired by the Borrower or a Subsidiary, the Borrower or such Subsidiary, as the case may be, shall have a period of 60 days (or such later date as the Administrative Agent may agree in its sole discretion) after such acquisition within which to subject such Material Real Property to a Lien pursuant to the Security Instruments, and, in connection therewith, the Borrower shall, or shall cause such Lien to be duly perfected to the extent required by Subsidiary to, execute and deliver such Collateral Document Security Instruments (in accordance with all applicable Lawproper form for filing, including the filing of financing statements in such jurisdictions registration or recordation, as may be reasonably applicable) as are requested by the Administrative Agent. The Borrowers shall otherwise , and take such commercially reasonable actions and execute and/or deliver necessary or advisable to subject such Material Real Property to a Lien pursuant to the Collateral Security Instruments, provided, however, that with respect to any real Property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such documents as a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent may notify the Borrower of such determination and, (x) if such real Property is not then subject to a Lien pursuant to the Security Instruments, such real Property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (y) if such real Property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent may, upon obtaining the consent of the Required Lenders, release such Lien.
(c) Upon the request of the Required Lenders, the Borrower and each of its Subsidiaries shall take any additional actions required, if any, to cause all of its right, title and interest in each Hedging Agreement to which it is a party to be collaterally assigned to the Administrative Agent, for the benefit of the Secured Parties, and shall, if requested by the Administrative Agent or the Collateral Agent shall reasonably require Required Lenders, use its commercially reasonable efforts to confirm the validity, perfection and priority of the Lien of the Collateral Documents on cause each such after-acquired properties.
(b) With respect agreement or contract to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver expressly permit such assignment and (ii) upon the occurrence of any default or event of default under such agreement or contract, (A) to permit the Collateral Agent Lenders to cure such default or event of default and assume the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer obligations of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules such agreement or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties contract and (iiB) cause any to prohibit the termination of such new Subsidiary agreement or contract by the counterparty thereto if the Lenders assume the obligations of such Loan Party under such agreement or contract and the Lenders take the actions required under the foregoing clause (A).
(d) The Borrower agrees that it will not, and will not permit any Guarantor to, xxxxx x Xxxx on any Property to execute a joinder agreement reasonably acceptable secure the Term Loan Facility without contemporaneously granting to the Administrative Agent or such comparable documentation Agent, as security for the Secured Obligations, a first priority perfected Lien on the same Property pursuant to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction Instruments in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Revolving Credit Agreement (Southcross Energy Partners, L.P.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property (including, without limitation, title to the Davidson Property or any ownership interest in the Davidson Property) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection (to the extent required by the Security Documents) and priority of the Lien of the Collateral Security Documents on such after-acquired properties. Prior to the Discharge of First Lien Obligations, (i) the requirements of this Section 5.11(a) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Holdings and Borrower shall, and shall cause each Subsidiary to, comply with the requirements of this Section 5.11(a) with respect to the Obligations hereunder only to the same extent that Holdings, Borrower and such Subsidiar- ies are required to comply with provisions analogous to this Section 5.11(a) with respect to the First Lien Obligations in the First Lien Credit Agreement. In the event that Borrower receives any conflicting instructions or requests from the First Lien Collateral Agent and the Second Lien Collateral Agent, the Borrower shall until Discharge of First Lien Obligations comply with the instructions and requests made by the First Lien Collateral Agent.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement the Security Documents in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a successor provision) of the Code, which investment would or could reasonably be expected to trigger an increase in the United States Income Tax of a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code; provided that any actions specified in clause (ii) of this Section 5.11(b) with respect to Equity Interests of a Foreign Subsidiary shall be terminated if it is subsequently determined that is such actions would constitute an Excluded Subsidiary by reason investment of clause earnings in United States property under Section 956 (gor a successor provision) of the definition Code, which investment would or could reasonably be expected to trigger an increase in the United States Income Tax of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code; provided further that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b). Prior to the Discharge of First Lien Obligations, (i) the requirements of this Section 5.11(b) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Holdings and Borrower shall, and shall cause each Subsidiary to, comply with the requirements of this Section 5.l1(b) with respect to the Obligations hereunder only to the same extent that Holdings, Borrower and such Subsidiaries are required to comply with provisions analogous to this Section 5.11(b) with respect to the First Lien Obligations in the First Lien Credit Agreement. In the event that Borrower receives any conflicting instructions or requests from the First Lien Collateral Agent and the Second Lien Collateral Agent, the Bor- rower shall until Discharge of First Lien Obligations comply with the instructions and requests made by the First Lien Collateral Agent.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements Improvements thereon, individually has individually, or in the aggregate when taken with all contiguous parcels of Real Property interests then held by any Loan having a fair market value of at least $15 1.0 million for each such Real Property or in excess of $5.0 million in the aggregate for all such Real Property property acquired after the Closing Date, (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has annual lease payments of at least $500,000 and (iii) any and all other material interests in Real Property otherwise held by any Loan Party which individually, or in the aggregate when taken with all contiguous parcels of Real Property interests then held by any Loan having a fair market value of at least $1.0 million, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy or local legal counsel title opinion satisfactory to the Administrative Agent, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require . Prior to the creation or perfection Discharge of pledges of or security interests inFirst Lien Obligations, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) the requirements of this Section 5.11(c) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or Intercreditor Agreement) and (ii) Holdings and Borrower shall, and shall cause each Subsidiary to, comply with the creation or perfection requirements of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required this Section 5.11(c) with respect to the Obligations hereunder only to the same extent that Holdings, Borrower and such assets). In addition, the foregoing will not require actions under Subsidiaries are required to comply with provisions analogous to this Section 6.11 by a Person if and to the extent that such action would (a5.11(c) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests First Lien Obligations in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsFirst Lien Credit Agreement.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Thompson Creek Metals CO Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property Property acquired after the Closing Date by Borrowers or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Property described in paragraph (b) of this subsection) promptly (and in any event within 60 30 days after the acquisition thereof) thereof provided the Administrative Agent has provided all joinder agreements to the applicable Security Documents necessary for the Loan Parties to comply herewith): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property Property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Wholly Owned Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, Party) promptly (and in any event within 60 30 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by (provided that with respect to any first-tier Foreign Subsidiary of a Borrower or a Subsidiary organized in a State of the United States, in no event shall more than 66% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Security Document if such Loan Partypledge would have a material adverse tax impact on Borrowers (determined at the reasonable discretion of the Administrative Agent)), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseSubsidiary, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary if such pledge would have a material adverse tax impact on Borrowers (determined at the reasonable discretion of the Administrative Agent) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially Agreement in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction thereto which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Each Loan Party will promptly grant to the Collateral Administrative Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage Lien on each parcel of owned or leased Real Property owned in fee by of such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, as additional security for the Obligations (unless the subject property Property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require require, to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policytitle insurance policy, a Survey and local counsel opinion (all in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof (or such later date as the Administrative Agent may agree)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, ; and (ii) take all commercially reasonable actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate or ceases to be an Excluded Subsidiary, promptly (and in any event within 60 thirty (30) days after the later of (I) the date such Person becomes a SubsidiarySubsidiary or (II) the date Parent delivers to the Administrative Agent financial statements by which it is determined that such Person ceased to be an Excluded Subsidiary (or such later date as the Administrative Agent may agree)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(sholder (or holders) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all other actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (ge) of the definition of Excluded Subsidiary and Subsidiary, (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause , (13) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to no more than (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged, and (4) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged.
(c) Promptly Each Loan Party shall grant to the Collateral Agent, within 60 ninety (90) days of the acquisition thereofthereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as that is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value (as determined in good faith by Parent) in excess of at least $15 5 million (with fair market value determined as of the date of acquisition thereof and without regard to third party advertising revenue derived from any improvements on such property that are made after the date of acquisition thereof), as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, to the extent so required, a Title Policy, a Survey and Survey, local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage). The Borrowers will provide at least forty-five (45) days prior written notice to the Administrative Agent prior to any Mortgage being delivered pursuant to this clause (c) in order to allow the Lenders to complete relevant flood insurance due diligence and related internal requirements. For the avoidance of doubt, (i) no Mortgage shall be required on any Real Property owned by any Loan Party on the Closing Date (each a “Closing Date Property”) and (ii) any Mortgage on a Closing Date Property that was granted in favor of the Collateral Agent at any time prior to the Amendment No. 2 Effective Date shall be released on or shortly after the Amendment No. 2 Effective Date.
(d) The foregoing clauses (a) through (c) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative AgentAgent and Parent in writing, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or therefrom; (ii) such asset constitutes an “Excluded Asset” (as such term is defined in the creation Security Agreement); or perfection of (iii) such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets)asset constitutes intercompany Indebtedness between Loan Parties. In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) ); or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersParent, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and XxxxxxxParent. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company Parent that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt Notes shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)6.12, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and within 15 Business Days following the end of the Fiscal Quarter in any event within 60 days after the which such acquisition thereof) occurs (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderpursuant to Section 7.1, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and within 15 Business Days following the end of the Fiscal Quarter in any event within 60 days after which such Person becomes a Subsidiary) Subsidiary (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests Capital Stock of such Subsidiary owned to the extent held by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity InterestsCapital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, (B) to execute a Business Associate Agreement and (BC) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (x)
(1) the Equity Interests Capital Stock required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b6.12(b) shall not include any Equity Interests Capital Stock of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in sub-clauses (A) and (C) of clause (ii) of this Section 6.11(b6.12(b); provided that the this exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Interests of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Interests of such Subsidiary and (B) 100% of the Equity Interests Capital Stock not constituting voting stock Voting Interests of any such Subsidiary, except that any such Equity Interests Capital Stock constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Interests for purposes of this Section 6.11(b6.12(b) and (y) no Subsidiary of the Borrower will be required to become a Guarantor and to comply with this Section 6.12(b) if the Loan Parties would be in compliance with Section 7.12 notwithstanding such Subsidiary’s failure (and the failure of any other Subsidiaries) to comply with this Section 6.12(b). Notwithstanding the foregoing and notwithstanding Section 7.12, if any Subsidiary that is not a Guarantor is a guarantor of or shall guarantee Debt of a Loan Party or Debt of a Loan Party is or shall otherwise become a Contingent Obligation of any Subsidiary that is not a Guarantor, such Subsidiary shall become a Guarantor hereunder and comply with Section 6.12 and Section 6.13 and all other applicable provisions hereof.
(c) Promptly Other than with respect to the Denver Headquarters, promptly grant to the Collateral Agent, within 60 days 15 Business Days of the end of the Fiscal Quarter in which the acquisition thereofthereof occurred, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 10.020.0 million as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.1). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderby Section 7.1, or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle insurance policy, a Survey Survey, a life of loan flood hazard determination (together with a notice regarding the special flood hazard area status and flood disaster assistance with respect to such after-acquired Real Property executed by the Borrower) and a local counsel opinion (each in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any personal property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents Security Agreement but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents Security Agreement or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document the Security Agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on Security Agreement against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests In- terests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage Mortgage on its interest in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $500,000, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) Promptly grant to the Collateral Agent, within 60 days after the end of each Excess Cash Flow Period, a security interest in and Mortgage on each Mineral Interest (whether leasehold or owned in fee) by such Loan Party as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02); provided that in the event that the aggregate value of all such Mineral Interests not subject to a Mortgage exceeds $1.0 million, then the Company shall promptly grant to the Collateral Agent, within 60 days after exceeding such threshold, a security interest in and Mortgage on such Mineral Interests. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens or other Liens acceptable to the Collateral Agent. The foregoing Mortgages or instruments related thereto shall not require be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the creation or perfection Liens in favor of pledges of or security interests inthe Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the obtaining of title insurance or surveys with respect toCollateral Agent shall require to confirm the validity, particular assets if perfection and for so long as (i) in the reasonable judgment priority of the Administrative AgentLien of any existing Mortgage or new Mortgage against such after-acquired Mineral Interests (including and without limitation, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys local counsel opinion in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assetsMortgage). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of this Section 6.11 and Section 6.13(b)5.11, with respect to any personal property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by constitutes “Collateral” (other than Excluded Property) under any of the Collateral Security Documents but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 30 days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable United States state and federal law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) to the extent reasonably requested by the Administrative Agent, deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent and (iii) other than Excluded Perfection Actions, take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawUnited States state, federal or local Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions (other than Excluded Perfection Actions) and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any (x) Person that is or becomes a direct Subsidiary (other than an Immaterial Subsidiary) of a Loan Party after the Closing DateDate (other than a merger subsidiary formed in connection with a Permitted Acquisition so long as such merger subsidiary is merged out of existence pursuant to such Permitted Acquisition within 30 days of its formation thereof (or such later date as permitted by the Administrative Agent in its sole discretion)) or (y) any Subsidiary designated as an Immaterial Subsidiary that fails to comply with the requirements set forth in the definition of “Immaterial Subsidiaries”, promptly (and in any event within 60 30 days after such Person becomes a Subsidiary or ceases to be an Immaterial Subsidiary) , or such longer period as the Administrative Agent may approve in its sole discretion, (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party required to be delivered pursuant to the Security Agreement or other applicable Security Document together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary except any Foreign Subsidiary that is a controlled foreign corporation (Aas defined in Section 957 of the Code) (a “CFC”) (1) to execute a joinder agreement reasonably acceptable agreement, in the form attached as Exhibit 3 to the Administrative Agent or such comparable documentation Security Agreement, to become a Subsidiary Guarantor hereunder and a joinder agreement to the applicable Collateral Documents Pledgor (including as defined in the Security Agreement), substantially in the form annexed thereto, or) under Security Agreement and, in the case of a Foreign SubsidiarySubsidiary (other than a CFC) (unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with applicable foreign law is excessive in relation to the value of the security to be afforded thereby), execute a security agreement such other Security Documents as are compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction and are necessary or advisable, in the reasonable judgment of the Administrative Agent, to provide for a valid and perfected security interest in the Collateral held by such Foreign Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent, (2) to the extent reasonably requested by the Administrative Agent, to deliver opinions of counsel to such Foreign Subsidiary (other than a CFC) in form and substance, and form counsel, reasonably satisfactory to the Administrative Agent and (B3) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under United States federal and applicable state law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) to the extent required by such agreement agreements in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding ; provided, that, in the foregoingcase of a CFC, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply limited to (Ax) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power Voting Stock of all outstanding voting stock of any such Subsidiary which is owned directly by Borrower or any Domestic Subsidiary of Borrower and (By) 100% of the Equity Interests not constituting voting stock Voting Stock of any such SubsidiarySubsidiary (which pledge shall be documented under United States law and applicable foreign law, except unless the Administrative Agent shall determine in its sole discretion that any the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby). Notwithstanding the foregoing, no Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) any Foreign Subsidiary that is not owned directly by Borrower or a Domestic Subsidiary of Borrower shall be treated as voting stock for purposes of this Section 6.11(b)pledged hereunder or under any other Loan Document.
(c) Promptly grant With respect to any Person that is or becomes a Subsidiary (other than an Immaterial Subsidiary) of a Loan Party after the Closing Date, promptly (and in any event within 15 Business Days after such Person becomes a Subsidiary) execute and deliver to the Collateral Agent, within 60 days of the acquisition thereof, Agent (i) a security interest in and mortgage in a form reasonably satisfactory counterpart to the Administrative Agent Intercompany Note and Collateral Agent (ii) if such Subsidiary is a “Mortgage”Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) on each parcel in the form attached thereto, endorsed by such Subsidiary.
(d) Upon acquisition of any Real Property owned in fee by such Loan Party as is acquired by such Loan Party in the United States after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2,000,000, promptly give written notice to the Administrative Agent with respect thereof, and grant to the Collateral Agent, within 90 days of the acquisition thereof (or such longer period as the Administrative Agent may approve), a security interest in and Mortgage on such Real Property as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected first priority Liens in the United States under state or local law subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such customary documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property request (including (i) a Title Policy, (ii) a Survey and Survey, (iii) a local counsel opinion (in form and substance and issued by a party reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
, (div) The foregoing shall an environmental assessment prepared by any environmental consultant, and in form and substance, reasonably satisfactory to the Collateral Agent that does not require the creation or perfection of pledges of or security interests in, disclose any Environmental Claims or the obtaining of title insurance or surveys with respect to, particular assets if potential for an Environmental Claim and for so long (v) evidence that no improvements located on such Real Property are located in an area designated as (i) a “flood hazard area” in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained any Flood Insurance Rate Map published by the Lenders therefrom Federal Emergency Management Agency (or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approvalsuccessor agency), unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required applicable Loan Party has complied with Section 5.04(d)(i) with respect to such assetsthereto). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding On or before the foregoing provisions date that occurs 75 days after the initial acquisition of this Section 6.11 or anything in this Agreement or any other Loan Document to approximately 90% Equity Interests DR Systems, acquire by way of a cash merger the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary remaining approximately 10% of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessEquity Interests of DR Systems.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired on or after the Closing Date date hereof by Borrower or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any property described in paragraph (b) of this subsection) promptly (and in any event within 60 30 days after the acquisition thereof) : (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-after acquired propertiesproperties or assets.
(b) With respect to any Person person that is or becomes a Wholly Owned Subsidiary (other than any Non Guarantor Subsidiary, any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Dateor any Immaterial Subsidiary), including any Subsidiary that ceases to be an Immaterial Subsidiary, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver Subsidiary provided that with respect to the Collateral Agent the certificatesany Foreign Subsidiary of Borrower, if any, representing all in no event shall more than 66% of the Equity Interests of such any Foreign Subsidiary owned by such Loan Partybe subject to any Lien or pledged under any Security Document), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary or ceases to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of be an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiImmaterial Subsidiary) cause any such new Subsidiary (other than any Non Guarantor Subsidiary, any Foreign Subsidiary or any Immaterial Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Joinder Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral AgentIf, within 60 days as of the acquisition thereofend of any fiscal quarter, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Wholly Owned Subsidiaries that were not previously required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time Subsidiary Guarantors pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of or this Section 6.11 5.10 collectively own net assets that have an aggregate Fair Market Value equal to or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary greater than 5% of the Company Borrower’s Consolidated Tangible Assets, then the Borrower shall cause one or more of such Subsidiaries to execute a Joinder Agreement(s) such that Guarantees after giving effect thereto, the Senior Subordinated Debt or total net assets owned by all such remaining Non-Guarantor Subsidiaries will have an aggregate Fair Market Value of less than 5% of the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessConsolidated Tangible Assets of the Borrower.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property assets acquired after the Closing Date by any Loan Credit Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is which are not so subjectsubject (but, in any event, excluding any assets described in paragraph (b) of this subsection), promptly (and in any event within 60 45 days after the acquisition thereof) ): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Subsidiary (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, or a Non-Guarantor Subsidiary) promptly (and in any event within 60 45 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such (provided that with respect to any Foreign Subsidiary of Borrower, in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Loan PartyDocument), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary's parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer duly executed and delivered in blank by a duly authorized officer of such Loan Party (in each caseParty, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary or a Non-Guarantor Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause .
(i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Each Credit Party will promptly grant to the Collateral Agent, within 60 days 180 Business Days of the acquisition thereof, a security interest interests and Mortgages in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of such owned or leased Real Property owned in fee by of such Loan Credit Party as is acquired by such Loan Credit Party after the Closing Date and that, together with any improvements thereon, in the case of any such owned or leased Real Property, individually or in the aggregate has a fair market value of at least $15 million 5.0 million, as additional security for the Obligations (unless the subject unless, with respect to any such property, (x) such property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 or (y) the Administrative Agent determines, in its reasonable discretion, that the fees and expenses of obtaining a Mortgage with respect to such property and the other related deliveries required by this Section 5.11 would be disproportionate to the expected benefits to be received by the Secured Parties) and (ii) in the event the San Xxxxxx Agreement is terminated or the sale of the San Xxxxxx Facility is not otherwise consummated prior to March 31, 2007, Holdings will promptly grant to the Collateral Agent, within 30 days of March 31, 2007 (or, if earlier, the date of termination of the San Xxxxxx Agreement), security interests and a Mortgage in the San Xxxxxx Facility. Such Mortgages In connection with either clause (i) or (ii) above, the Collateral Agent shall have received:
(a) a Mortgage encumbering each Mortgaged Real Property in favor of Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by the Credit Party that is the owner of or holder of a possessory interest in such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be granted pursuant required in connection with the recording or filing thereof to documentation reasonably satisfactory create a Lien under applicable law, and such UCC-1 Financing Statements, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, and any other instruments necessary to grant a mortgage lien under the Administrative Agent and laws of any applicable jurisdiction;
(b) with respect to each leasehold Mortgaged Real Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall reasonably be deemed necessary by the Collateral Agent in order for the owner of the fee interest therein to consent to or approve of the Lien contemplated by the Mortgage with respect to such leasehold Mortgaged Real Property, and as may be obtained by the owner of such leasehold interest constituting such leasehold Mortgaged Real Property using commercially reasonable efforts;
(c) with respect to each Mortgage, a Title Policy shall constitute valid (A) be issued by the Title Company, (B) to the extent reasonably necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a "tie-in" or "cluster" endorsement (if available under applicable law), (D) have been supplemented by such endorsements as shall be reasonably requested by the Collateral Agent, and enforceable perfected (E) contain no exceptions to title other than exceptions for the Permitted Liens subject only applicable to Liens permitted hereundersuch Mortgaged Real Property and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements);
(d) with respect to each Mortgaged Real Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including, without limitation, a so-called "gap" indemnification) as shall be reasonably required to induce the Title Company to issue the Title Policies and endorsements contemplated in subparagraph (iii) above;
(e) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to in subparagraph (iii) above;
(f) with respect to each Mortgaged Real Property, copies of all leases in which any Group Company holds the lessor's interest or other agreements relating to possessory interests of any Group Company, if any. To the extent any of the foregoing encumber any Mortgaged Real Property, such agreement shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement;
(g) with respect to each Mortgaged Real Property, each Group Company shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Real Property, including the use of forms provided by state or local agencies, where such forms exist, whether to Borrower or to or with the state or local agency;
(h) with respect to each Mortgaged Real Property, a legal opinion from counsel licensed in the state in which the Mortgaged Real Property is located in form and substance reasonably satisfactory to Collateral Agent; and
(i) a Survey of any such Mortgaged Real Property. The Mortgages or and instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges due and payable in connection therewith shall be paid in full. Such Loan Credit Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory within 60 days after prompt notice of the acquisition of such after-acquired Real Property is provided to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Cpi Holdco Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with With respect to any property or property interest acquired after the Closing Date by any Loan Party that is intended as to be which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected security interest (other than any (i) Excluded Property, (ii) Excluded Real Property, (iii) property described in paragraph (c) below, (iv) cash and cash equivalents and (v) other property with respect to which the Loan Documents do not require the Collateral Agent or any other Secured Party to have a perfected security interest), subject to the Lien created by any of the Collateral Documents but is not so subjectcompliance with applicable Gaming Laws, promptly (and in any event within 60 days after 20 Business Days following the date of such acquisition thereof) (ior such longer period as may be reasonably approved by the Administrative Agent) execute and deliver to the Administrative Collateral Agent and a joinder to this Agreement in a form reasonably satisfactory to the Collateral Agent and, subject to compliance with applicable Gaming Laws, such amendments or supplements to the relevant Collateral Documents Security Agreement, the Pledge Agreement or such other documents documents, and take all the actions, as the Administrative Agent or the Collateral Agent shall reasonably deem deems necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on perfected security interest in such property (subject only to no Permitted Liens and prior and superior in right to any other than Liens permitted hereunderLien (except Permitted Liens)), and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Lawincluding, including without limitation, the filing of UCC financing statements in such jurisdictions as may be reasonably requested required by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent Security Documents or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is by law or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding In addition to the foregoing, in the event any such property or interest therein acquired after the Closing Date consists of Real Property (1other than Excluded Real Property) or other property with respect to which a recording in the Equity Interests real property records of an appropriate jurisdiction is required or advisable in order to perfect a security interest therein, promptly (and, in any event, (I) in the case of clauses (A), (B) and (D) below, within 20 Business Days following, and (II) in the case of clause (C) below, no later than five Business Days prior to, the date of such acquisition or such longer or shorter period as may be reasonably approved by the Administrative Agent) (A) execute and deliver a mortgage, substantially in the form of the Mortgages (with such modifications, if any, as are necessary to comply with Requirements of Law (including Gaming Laws) or that the Administrative Agent or the Collateral Agent may reasonably request), such mortgage to be delivered recorded in the real property records of the appropriate jurisdiction, or execute and deliver to the Collateral AgentAgent for recording a supplement to an existing Mortgage, or in either case pursuant to which the applicable Loan Party grants to the Collateral Agent on which behalf of the Secured Parties a Lien is required on such Real Property subject only to be created, pursuant Permitted Liens and prior and superior in right to clause any other Lien (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (bexcept Permitted Liens), (dB) provide the Collateral Agent on behalf of the Secured Parties with a commitment from the Title Company to issue title and extended coverage insurance covering such Real Property in an amount at least equal to the fair market value of such Real Property (including pursuant to a tie-in endorsement, if applicable), or obtain a commitment from the Title Company to issue an appropriate endorsement or supplement to an existing Title Policy (in the case of an appropriate endorsement or supplement to an existing Title Policy, without any increase in the coverage amount of such Title Policy), (fC) provide the Administrative Agent with a Phase I environmental assessment report or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) reports with respect to Equity Interests of such Real Property along with a Foreign Subsidiary that is corresponding reliance letter from an Excluded Subsidiary by reason of clause environmental consultant (g) of the definition of Excluded Subsidiary of this sentence shall not apply if available), such Phase I reports and reliance letters to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent Agent, and Collateral Agent (a “Mortgage”D) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such other documents or provide such other information in furtherance thereof as the Administrative Agent or the Collateral Agent shall may reasonably require request to confirm the validityobtain such security interest, perfection and priority including delivering documents which would have been required under Section 4.01(k) if such Real Property were part of the Lien Mortgaged Property on the Closing Date.
(b) With respect to any new Subsidiary (other than an Unrestricted Subsidiary or an Immaterial Subsidiary) created or acquired after the Closing Date (which, for the purpose of this paragraph shall include any existing Mortgage Subsidiary that ceases to be an Unrestricted Subsidiary) by any Loan Party
(i) except with respect to a Subsidiary ceasing to be an Immaterial Subsidiary, execute and deliver to the Collateral Agent such amendments to the Security Agreement and the Pledge Agreement as the Administrative Agent or new Mortgage against such after-acquired Real Property (including a Title Policythe Collateral Agent reasonably deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a Survey perfected security interest in the Equity Interests of such new Subsidiary (subject only to Permitted Liens); provided that if such new Subsidiary is a Foreign Subsidiary, in no event shall more than 65% of the total outstanding voting Equity Interests and local counsel opinion 100% of the total outstanding nonvoting Equity Interests of such new Subsidiary be required to be so pledged and provided further if such Equity Interests constitute Excluded Property, such Equity Interests shall not be required to be pledged, (ii) except with respect to a Subsidiary ceasing to be an Immaterial Subsidiary or with respect to Equity Interests constituting Excluded Property, deliver to the Collateral Agent the certificates (if any) representing such Equity Interests, together with undated stock or similar powers, in form blank, executed and substance delivered by a duly authorized officer of such Loan Party, as applicable, (iii) if such new Subsidiary is a Wholly Owned Subsidiary that is a Domestic Subsidiary, cause such new Subsidiary (or Subsidiary ceasing to be an Immaterial Subsidiary that is a Wholly Owned Subsidiary) (A) to become a party to this Agreement, the Security Agreement, the Pledge Agreement, the Intercompany Note, and, to the extent applicable, the Intellectual Property Security Agreements and the other Security Documents, and (B) to take such actions reasonably satisfactory necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected security interest (subject only to Permitted Liens and prior and superior in right to any other Lien (except Permitted Liens)) in the Collateral described in the Security Documents with respect to such new Subsidiary owned by any Loan Party (or Subsidiary ceasing to be an Immaterial Subsidiary), including, without limitation, the execution and delivery by all necessary persons of Control Agreements and the filing of UCC financing statements and other filings in such jurisdictions as may be required by the Security Documents or by law or as may be reasonably requested by the Administrative Agent or the Collateral Agent, (iv) if requested by the Administrative Agent, deliver to the Administrative Agent customary legal opinions relating to the matters described above and (v) execute and/or deliver such other documents or provide such other information as the Administrative Agent or the Collateral Agent may reasonably request with respect to the foregoing requirements, including delivering documents and taking such other actions which would have been required under Section 4.01 if such new Subsidiary were a Loan Party (or, in the case of a Subsidiary ceasing to be an Immaterial Subsidiary, if such Subsidiary had not been an Immaterial Subsidiary) on the Closing Date. In addition to the foregoing, in the event any such new Subsidiary (or Subsidiary ceasing to be an Immaterial Subsidiary) owns or otherwise has interests in any Real Property or other property with respect to which a recording in the real property records of an appropriate jurisdiction is required or advisable in order to perfect a security interest therein, the Borrower shall, or shall cause the other Loan Parties to, take the actions required by clause (a) of this Section in relation thereto.
(c) With respect to any Immaterial Subsidiary or Unrestricted Subsidiary created, acquired or designated after the Closing Date by any Loan Party, promptly (i) execute and deliver to the Administrative Agent, subject to compliance with applicable Gaming Laws, such amendments to the Security Agreement, the Pledge Agreement or such other documents as the Administrative Agent deems necessary or advisable in order to grant to the Collateral Agent) , for the benefit of the Secured Parties, a perfected security interest in respect the Equity Interests of such Mortgage)new Immaterial Subsidiary or such Unrestricted Subsidiary that is owned by such Loan Party; provided that if any such new Immaterial Subsidiary or such Unrestricted Subsidiary is a Foreign Subsidiary, in no event shall more than 65% of the total outstanding voting Equity Interests and 100% of the total outstanding nonvoting Equity Interests of such Subsidiary be required to be so pledged and (ii) deliver to the Collateral Agent the certificates (if any) representing such Equity Interests, together with undated stock or similar powers, in blank, executed and delivered by a duly authorized officer of such Loan Party and take such other action as may be necessary or, in the opinion of the Administrative Agent or Collateral Agent advisable to perfect the Lien of the Collateral Agent thereon.
(d) The foregoing Notwithstanding anything to the contrary in this Section 5.10, the Loan Parties shall not require be required to (i) (A) take the creation or perfection of pledges of or actions necessary to grant a perfected security interests interest in, or the obtaining of (B) obtain title and extended coverage insurance or surveys with respect to, particular assets if and for so long as (i) in any Property acquired after the reasonable judgment of Closing Date to the extent that the Administrative AgentAgent has determined in its sole discretion that the collateral value thereof is insufficient to justify the difficulty, the cost time and/or expense of creating or perfecting taking such pledges or security interests in such assets actions or obtaining title such insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) deliver a Phase I Report with respect to any fee, easement or other interest in real property acquired after the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring Closing Date to the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless extent the Administrative Agent shall determine in its reasonable judgment discretion has determined that the size, location and proposed use thereof are insufficient to justify the time and expense of obtaining such pledge or security interest shall not be required with respect to such assets)reports. In additionAdditionally, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that any such action would (a) go beyond acquisition relates to Real Property, the corporate or other powers of the Person concerned (definitions, exhibits and then only as such corporate or other power cannot be modified or excluded schedules to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or and any other Loan Document (including the Disbursement Agreement) related to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 descriptions of Real Property shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, deemed amended to the extent appropriate necessary to reflect such acquisition (and the Administrative Agent is authorized to execute written amendments to such Loan Documents in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessconnection therewith).
Appears in 1 contract
Samples: Credit Agreement (Stockbridge/Sbe Investment Company, LLC)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent, and (iii) with respect to any property constituting Material Foreign Intellectual Property owned by any Foreign Subsidiary, transfer such Material Foreign Intellectual Property to a Loan Party; provided that no Foreign Subsidiary shall be required to take the actions specified in clause (iii) of this Section 5.11(a) if doing so would or could be expected to trigger a material increase in the amounts included in the gross income of a United States shareholder of such Foreign Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by Parent Borrower. The Borrowers Parent Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to (x) any Person person that is or becomes a direct Subsidiary of a Loan Party (other than an Immaterial Subsidiary) after the Closing DateDate and (y) any Subsidiary previously designated by the Parent Borrower as an Immaterial Subsidiary pursuant to the definition thereof that at any time fails to meet either of the qualifications of an Immaterial Subsidiary under the definition thereof or is designated by the Parent Borrower as no longer being an Immaterial Subsidiary pursuant to Section 5.11(d), in each case promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary or is no longer an Immaterial Subsidiary) (i) unless such Equity Interests are uncertificated, deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign SubsidiarySubsidiary that owns Material Foreign Intellectual Property, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) security agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the amounts included in gross income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by Parent Borrower; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $250,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey Survey, a life of loan flood hazard determination and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require To the creation or perfection of pledges of or security interests in, extent the consolidated total assets or the obtaining of title insurance or surveys with respect to, particular assets if and consolidated total revenues for so long as (i) all Immaterial Subsidiaries in the reasonable judgment aggregate exceed the amounts specified in the proviso to the definition of the Administrative Agent“Immaterial Subsidiary”, the cost of creating Parent Borrower shall cause one or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits more Immaterial Subsidiaries to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and become Guarantors to the extent required by Section 5.11(b) such that such action would (a) go beyond the corporate or other powers of consolidated total assets and the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time consolidated total revenues for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests all remaining Immaterial Subsidiaries in the assets of aggregate do not exceed the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth amounts specified in the Collateral Documents as in effect on the Amendment Effective Date and, proviso to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessdefinition.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to In the event that the Borrower or any property acquired after the Closing Date by any Loan Party Subsidiary acquires or forms a subsidiary that is intended not designated as an Excluded Subsidiary in accordance with Section 8.15, or if the Borrower or any other Subsidiary causes any Subsidiary to be subject to guarantee the Lien created by any of Revolving Credit Facility, the Collateral Documents Borrower or its Subsidiary shall promptly, but is not so subject, promptly (and in any event within 60 30 days after (or such later date as the acquisition thereofAdministrative Agent may agree in its sole discretion (it being understood that so long as the Revolving Credit Facility is outstanding, the judgment of the Revolver Administrative Agent in respect of the matters described in this clause (a) shall be deemed to be the judgment of the Administrative Agent with respect to such matters)), cause such Subsidiary to guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with any guaranty, the Borrower shall, or shall cause such Subsidiary to, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements a supplement to the relevant Guaranty and Collateral Documents or Agreement and such other documents Security Instruments (in proper form for filing, registration or recordation, as applicable) as are requested by the Administrative Agent or the Collateral Agent shall reasonably deem Agent, and take such actions necessary or advisable to grant to the Collateral Agent, for its benefit and Administrative Agent for the benefit of the other Secured PartiesParties a first priority, a perfected Lien (subject only to Excepted Liens and Liens permitted under Section 9.03(h)) on all of the tangible and intangible Property of such property subject to no Liens Subsidiary (other than Liens permitted hereunderde minimis Property excluded in the Administrative Agent’s sole discretion), (ii) cause the owner of the Equity Interests in such Subsidiary to pledge such Equity Interests (including, without limitation, delivery of original stock certificates evidencing the Equity Interests of such Subsidiary, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(b) The Borrower will at all times cause (i) all Material Real Property, and (ii) take all commercially reasonable actions necessary other tangible and intangible Property of the Borrower and each Subsidiary not covered by clause (a) above, including any Equity Interests in an Excluded Subsidiary, in each case to be subject to a Lien pursuant to the Security Instruments, except that, with respect to any Material Real Property acquired by the Borrower or a Subsidiary, the Borrower or such Subsidiary, as the case may be, shall have a period of 60 days (or such later date as the Administrative Agent may agree in its sole discretion (it being understood that so long as the Revolving Credit Facility is outstanding, the judgment of the Revolver Administrative Agent in respect of the matters described in this clause (a) shall be deemed to be the judgment of the Administrative Agent with respect to such matters)) after such acquisition within which to subject such Material Real Property to a Lien pursuant to the Security Instruments, and, in connection therewith, the Borrower shall, or shall cause such Lien to be duly perfected to the extent required by Subsidiary to, execute and deliver such Collateral Document Security Instruments (in accordance with all applicable Lawproper form for filing, including the filing of financing statements in such jurisdictions registration or recordation, as may be reasonably applicable) as are requested by the Administrative Agent. The Borrowers shall otherwise , and take such commercially reasonable actions and execute and/or deliver necessary or advisable to subject such Material Real Property to a Lien pursuant to the Collateral Security Instruments, provided, however, that with respect to any real Property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such documents as a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent may notify the Borrower of such determination and, (x) if such real Property is not then subject to a Lien pursuant to the Security Instruments, such real Property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (y) if such real Property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent may, upon obtaining the consent of the Required Lenders, release such Lien.
(c) Upon the request of the Required Lenders, the Borrower and each of its Subsidiaries shall take any additional actions required, if any, to cause all of its right, title and interest in each Hedging Agreement to which it is a party to be collaterally assigned to the Administrative Agent, for the benefit of the Secured Parties, and shall, if requested by the Administrative Agent or the Collateral Agent shall reasonably require Required Lenders, use its commercially reasonable efforts to confirm the validity, perfection and priority of the Lien of the Collateral Documents on cause each such after-acquired properties.
(b) With respect agreement or contract to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver expressly permit such assignment and (ii) upon the occurrence of any default or event of default under such agreement or contract, (A) to permit the Collateral Agent Lenders to cure such default or event of default and assume the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer obligations of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules such agreement or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties contract and (iiB) cause any to prohibit the termination of such new Subsidiary agreement or contract by the counterparty thereto if the Lenders assume the obligations of such Loan Party under such agreement or contract and the Lenders take the actions required under the foregoing clause (A).
(d) The Borrower agrees that it will not, and will not permit any Guarantor to, xxxxx x Xxxx on any Property to execute a joinder agreement reasonably acceptable secure the Revolving Credit Facility without contemporaneously granting to the Administrative Agent or such comparable documentation Agent, as security for the Secured Obligations, a first priority perfected Lien on the same Property pursuant to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction Instruments in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Southcross Energy Partners, L.P.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)the terms of the Intercreditor Agreement, with respect to any personal property (other than leasehold interests) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents (as specified in this Section 6.9) but is not so subjectsubject (other than Equity Interests in Foreign Subsidiaries not required to be pledged under Section 6.9(b)), promptly (and in any event within 60 15 days after the acquisition thereof, unless Agent agrees to a longer time period) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties. Notwithstanding the foregoing, Borrowers shall have no obligation to perfect Agent’s Liens on Intellectual Property outside the United States.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 15 days after such Person person becomes a Subsidiary, unless the Agent agrees to a longer time period) (i) pledge and deliver (with respect to Foreign Subsidiaries, to the Collateral extent permitted by law) to Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, provided that, with respect to any Foreign Subsidiary, no more than 65% of the Equity Interests of any first-tier Foreign Subsidiary of any Borrower or any Guarantor (and no stock of any other Foreign Subsidiary) shall be so pledged and delivered as security for the Secured Obligations, (ii) deliver to Agent as security for the Secured Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a Borrower or Guarantor, in each case, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiiii) cause any if such new Subsidiary (A) is a US Subsidiary, cause such new US Subsidiary to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Borrower or Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) cause to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, unless Agent otherwise agrees, within 60 15 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party that is a Borrower or US Subsidiary, as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 250,000, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party Secured Obligations. Subject to the extent permitted hereunder). Such Mortgages terms of the Intercreditor Agreement, such Liens shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law other Liens reasonably acceptable to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Agent may, in any instance, waive the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets collateral requirements set forth in this Section 6.9 if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of it reasonably determines that the benefits to be obtained by the Lenders therefrom or (ii) Secured Parties from the creation or perfection of such pledges or Liens and security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, provided for in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if 6.9 are not sufficiently more than the cost and to the extent that expense of obtaining such action would (a) go beyond the corporate or other powers of the Person concerned (Liens and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsinterests.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Senior Credit Agreement
Additional Collateral; Additional Guarantors. (a) Subject to the terms of this Section 6.11 and Section 6.13(b)5.11, with respect to any personal property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by constitutes “Collateral” (other than Excluded Property) under any of the Collateral Security Documents but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 30 days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable United States state and federal law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) to the extent reasonably requested by the Administrative Agent, deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent and (iii) other than Excluded Perfection Actions, take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawUnited States state, federal or local Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions (other than Excluded Perfection Actions) and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any (x) Person that is or becomes a direct Subsidiary (other than an Immaterial Subsidiary) of a Loan Party after the Closing DateDate (other than a merger subsidiary formed in connection with a Permitted Acquisition so long as such merger subsidiary is merged out of existence pursuant to such Permitted Acquisition within 30 days of its formation thereof (or such later date as permitted by the Administrative Agent in its sole discretion)) or (y) any Subsidiary designated as an Immaterial Subsidiary that fails to comply with the requirements set forth in the definition of “Immaterial Subsidiaries”, promptly (and in any event within 60 30 days after such Person becomes a Subsidiary or ceases to be an Immaterial Subsidiary) , or such longer period as the Administrative Agent may approve in its sole discretion, (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party required to be delivered pursuant to the Security Agreement or other applicable Security Document together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary except any Foreign Subsidiary that is a controlled foreign corporation (Aas defined in Section 957 of the Code) (a “CFC”) (1) to execute a joinder agreement reasonably acceptable agreement, in the form attached as Exhibit 3 to the Administrative Agent or such comparable documentation Security Agreement, to become a Subsidiary Guarantor hereunder and a joinder agreement to the applicable Collateral Documents Pledgor (including as defined in the Security Agreement), substantially in the form annexed thereto, or) under Security Agreement and, in the case of a Foreign SubsidiarySubsidiary (other than a CFC) (unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with applicable foreign law is excessive in relation to the value of the security to be afforded thereby), execute a security agreement such other Security Documents as are compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction and are necessary or advisable, in the reasonable judgment of the Administrative Agent, to provide for a valid and perfected security interest in the Collateral held by such Foreign Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent, (2) to the extent reasonably requested by the Administrative Agent, to deliver opinions of counsel to such Foreign Subsidiary (other than a CFC) in form and substance, and form counsel, reasonably satisfactory to the Administrative Agent and (B3) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under United States federal and applicable state law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) to the extent required by such agreement agreements in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding ; provided, that, in the foregoingcase of a CFC, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply limited to (Ax) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power Voting Stock of all outstanding voting stock of any such Subsidiary which is owned directly by Borrower or any Domestic Subsidiary of Borrower and (By) 100% of the Equity Interests not constituting voting stock Voting Stock of any such SubsidiarySubsidiary (which pledge shall be documented under United States law and applicable foreign law, except unless the Administrative Agent shall determine in its sole discretion that any the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby). Notwithstanding the foregoing, no Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) any Foreign Subsidiary that is not owned directly by Borrower or a Domestic Subsidiary of Borrower shall be treated as voting stock for purposes of this Section 6.11(b)pledged hereunder or under any other Loan Document.
(c) Promptly grant With respect to any Person that is or becomes a Subsidiary (other than an Immaterial Subsidiary) of a Loan Party after the Closing Date, promptly (and in any event within 15 Business Days after such Person becomes a Subsidiary) execute and deliver to the Collateral Agent, within 60 days of the acquisition thereof, Agent (i) a security interest in and mortgage in a form reasonably satisfactory counterpart to the Administrative Agent Intercompany Note and Collateral Agent (ii) if such Subsidiary is a “Mortgage”Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) on each parcel in the form attached thereto, endorsed by such Subsidiary.
(d) Upon acquisition of any Real Property owned in fee by such Loan Party as is acquired by such Loan Party in the United States after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2,000,000, promptly give written notice to the Administrative Agent with respect thereof, and grant to the Collateral Agent, within 90 days of the acquisition thereof (or such longer period as the Administrative Agent may approve), a security interest in and Mortgage on such Real Property as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected first priority Liens in the United States under state or local law subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such customary documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property request (including (i) a Title Policy, (ii) a Survey and Survey, (iii) a local counsel opinion (in form and substance and issued by a party reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
, (div) The foregoing shall an environmental assessment prepared by any environmental consultant, and in form and substance, reasonably satisfactory to the Collateral Agent that does not require the creation or perfection of pledges of or security interests in, disclose any Environmental Claims or the obtaining of title insurance or surveys with respect to, particular assets if potential for an Environmental Claim and for so long (v) evidence that no improvements located on such Real Property are located in an area designated as (i) a “flood hazard area” in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained any Flood Insurance Rate Map published by the Lenders therefrom Federal Emergency Management Agency (or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approvalsuccessor agency), unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required applicable Loan Party has complied with Section 5.04(d)(i) with respect to such assetsthereto). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property Property (other than leasehold interests), acquired after the Closing Date by a Borrower or any other Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Property described in paragraph (b) of this subsection) promptly (and in any event within 60 30 days after the acquisition thereof) thereof provided Collateral Agent has provided all joinder agreements to the applicable Security Documents necessary for the Loan Parties to comply herewith): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property Property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or Collateral Agent. The Borrowers Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets.
(b) With respect to any Person that is or becomes a Wholly Owned Subsidiary (other than any Immaterial Subsidiary or Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing Date, Party) promptly (and in any event within 60 30 days after such Person becomes a SubsidiarySubsidiary provided the Collateral Agent has provided all joinder agreements to the applicable Security Documents necessary for the Loan Parities to comply herewith) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by (provided that with respect to any first-tier Foreign Subsidiary of a Borrower or a Subsidiary organized in a State of the United States, in no event shall more than 65% of the Equity Interests of any Foreign Subsidiary be subject to any Lien or pledged under any Security Document if such Loan Partypledge would have an adverse tax impact on the Borrowers), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the holder(s) of such Equity Interestscase may be, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, Subsidiary to the extent applicable and permitted under foreign lawsrequired to be delivered pursuant to the Security Documents, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than any Foreign Subsidiary if such pledge would have an adverse tax impact on the Borrowers) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Loan Party (except that no Foreign Subsidiary Guarantor shall become a Borrower hereunder) and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially Agreement in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction thereto which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Each Loan Party will promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage Lien on each owned parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, as additional security for the Obligations (unless the subject property Property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation substantially similar to existing documentation or otherwise reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law) perfected Liens subject only to Permitted Liens permitted hereunderor other Liens reasonably acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, without limitation, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Broder Bros Co)
Additional Collateral; Additional Guarantors. Upon (ax) Subject to this Section 6.11 and Section 6.13(b)the re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, with respect to any property acquired after the Closing Date formation or acquisition by any Loan Credit Party that is intended or any of its Restricted Subsidiaries of any new direct or indirect Subsidiary (in each case, other than an Excluded Subsidiary) or upon any Subsidiary ceasing to be an Excluded Subsidiary, or (y) the acquisition of any personal property by any Credit Party (other than Excluded Assets) not already subject to the a perfected First Priority Lien created by any in favor of the Collateral Documents but is not so subject, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, Holdings shall, in each case, at the Borrowers’ expense, promptly, within thirty (30) Business Days, or such longer period as determined in writing by Administrative Agent in its sole discretion from time to time, after such formation, acquisition, cessation or re-designation, cause (i) such Subsidiary, and cause each direct and indirect parent of such Subsidiary (if it has not already done so) to become a Guarantor hereunder and a Grantor under the Pledge and Security Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart Agreement and/or (ii) such personal property not subject to a perfected First Priority Lien on to become subject to a First Priority Lien in favor of Collateral Agent (except to the extent constituting Excluded Assets or this Agreement or the Pledge and Security Agreement does not require that such property be subject to no Liens a perfected First Priority Lien), and in furtherance of the foregoing, take all such actions and execute and deliver, or cause to be executed and delivered, supplements to the Subordination Agreement executed on the Closing Date or any other than Liens permitted hereunderSubordination Agreement, pledges, assignments, joinders to any intercreditor agreements, any amendments, joinders and/or supplements to the Collateral Documents and any other documents, instruments, agreements, and certificates as are similar to those described in Sections 3.01(d), 3.01(f), 3.01(g), 3.01(j), 3.01(l), 3.01(m), 3.01(o) and 5.11 (but only to the extent reasonably required by Administrative Agent and subject to such additional time periods as Administrative Agent may consent to) or as otherwise reasonably requested by any Agent; provided, that the pledge of the Capital Stock of any Domestic Holding Company or Foreign Subsidiary shall be limited to 65% of the voting Capital Stock and 100% of the non-voting Capital Stock in each such Domestic Holding Company or Foreign Subsidiary. Additionally, after such formation, acquisition, cessation or re-designation, the Borrower Representative shall promptly send to Administrative Agent written notice setting forth with respect to such Person (i) the date on which such Person became a Subsidiary of a Credit Party, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed data required to be set forth in Schedules 4.01 and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, 4.02 with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor all Subsidiaries of the Collateral Agent on behalf Credit Parties; provided, such written notice shall be deemed to supplement Schedule 4.01 and 4.02 for all purposes hereof and (iii) a description of the Secured material owned real and personal properties of the Credit Parties and their respective Restricted Subsidiaries (iiother than any Excluded Subsidiary) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance detail reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)6.13, with respect to any property (including without limitation Motor Vehicles) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (other than property that is expressly not required to be pledged pursuant to clause (b) below), promptly (and in any event within 60 30 days after the acquisition thereofthereof (or such longer period approved by the Administrative Agent in its sole discretion)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person that is or becomes a Subsidiary after the Closing Date (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing DateParty), promptly (and in any event within 60 30 days after such Person person becomes a SubsidiarySubsidiary (or such longer period approved by the Administrative Agent in its sole discretion)) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by (provided, that with respect to any Foreign Subsidiary, in no event shall more than 65% of the voting Equity Interests of such Loan PartyForeign Subsidiary be subject to the Lien or pledged under the Security Documents), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than a Foreign Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereofthereof (or such longer period approved by the Administrative Agent in its sole discretion), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as that is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 5,000,000, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.01). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey Survey, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing . No Mortgage shall not require encumber improved Real Property that is located in an area that has been identified by the creation or perfection Secretary of pledges of or security interests in, or Housing and Urban Development as an area having special flood hazards within the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment meaning of the Administrative Agent, the cost National Flood Insurance Act of creating or perfecting 1968 unless flood insurance available under such pledges or security interests Act has been obtained in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless total amount as the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted Required Lenders may from time to time pursuant to Section 6.11 shall be subject to exceptions reasonably require, and limitations otherwise comply with the National Flood Insurance Program as set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdictionFlood Disaster Protection Act of 1973, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document amended from time to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednesstime.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereofthereof (or such later date consented to by the applicable Collateral Agent in its sole discretion)) (i) execute and deliver to the Administrative Agent Agents and the Collateral Agent Agents such amendments or supplements to the relevant Collateral Security Documents or such other documents as the any Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the applicable Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the any Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the applicable Collateral Agent such documents as the applicable Administrative Agent or the such Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) Subsidiary (or such later date consented to by the applicable Collateral Agent in its sole discretion))
(i) deliver to the applicable Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned (other than, in the case of a Foreign Subsidiary, the Equity Interests required by applicable local law to be held by individuals residing in such Loan Partyjurisdiction), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank blank, or otherwise as required by a Requirement of Law, by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to, subject to applicable local law, execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Guarantor (provided, that in the case of any Foreign Subsidiary, such Foreign Subsidiary Guarantor shall have the benefit of Section 7.10 and, in any event, such Foreign Subsidiary shall not guarantee the US Obligations) and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with subject to applicable local law, grant Liens in favor of Canadian Collateral Agent over all or substantially all of its assets, if applicable, on similar terms to the Laws of Liens granted pursuant to any Security Document to which any other Foreign Subsidiary incorporated in the same jurisdiction as such Foreign Subsidiary’s Subsidiary is a party, having first completed any requirements of any applicable law or regulation in any relevant jurisdiction in form and substance reasonably satisfactory to concerning financial assistance by a company for the Administrative Agentacquisition of or subscription for shares or concerning the protection of shareholders’ capital, and (B) to take all actions necessary or advisable in the opinion of the any Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or the foreign equivalent thereof) in such jurisdictions as may be reasonably requested by the such Administrative Agent or the such Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the applicable Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition of Excluded Subsidiary of Code; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the applicable Collateral Agent, within 60 30 days of the acquisition thereofthereof (or such later date consented to by the applicable Collateral Agent in its sole discretion), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, and (ii) unless such Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $500,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent Agents and the Collateral Agent Agents and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderor other Liens acceptable to the Collateral Agents. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Agents required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Agents such documents as the any Administrative Agent or the Collateral Agent reasonably shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent Agents and the Collateral AgentAgents) in respect of such Mortgage).
(d) The foregoing shall not require US Borrower may designate any Foreign Subsidiary acquired or formed after the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long Closing Date as (i) in the reasonable judgment of a Non-Guarantor Subsidiary by written notice to the Administrative Agent; provided, however, that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the cost aggregate (other than any Foreign Subsidiary that is not required to take the actions specified in Section 5.11(b)(ii) by operation of creating the last sentence of Section 5.11(b)) not otherwise subject to Section 5.11(b) has assets with either a book value or perfecting such pledges fair market value in excess of the Dollar Equivalent of $1,000,000, then Borrower shall, and shall cause one or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall be excessive Subsidiaries to, comply with Section 5.11(b) within the time frames set forth therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in view the aggregate holds property having either a book value or fair market value in excess of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection Dollar Equivalent of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents$1,000,000.
(e) Notwithstanding anything to the foregoing provisions contrary in this Section 5.11, the requirements of this Section 6.11 5.11 shall not apply to any property or anything Foreign Subsidiary acquired or formed after the Restatement Date as to which the applicable Collateral Agent has determined in this Agreement or any other Loan Document its sole discretion (by sending written notice to the contraryAdministrative Borrower) that the costs (time, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions expense and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, otherwise) of obtaining a perfected security interest therein are excessive to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document benefit to the contrary, any Subsidiary Secured Parties of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees obtaining such Indebtednessperfected security interest.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 sixty (60) days after the acquisition thereofthereof or such longer period as may be agreed by the Administrative Agent) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties. Without limiting the foregoing, if after the Closing Date any Loan Party shall or shall be required to take any action following the Closing Date to grant, perfect or otherwise establish a lien on and/or security interest in any of its assets or properties to secure obligations under the Existing Credit Agreement, then, subject to the terms of the Intercreditor Agreement, a lien and/or security interest shall, substantially concurrently therewith, be granted, perfected or otherwise established to secure the Obligations for the benefit of the Secured Parties, which action shall be required hereunder, whether or not set forth herein.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateDate (including, for the avoidance of doubt, by ceasing to be an Excluded Subsidiary), promptly (and in any event within 60 sixty (60) days after such Person becomes a Subsidiary) Subsidiary or such longer period as may be agreed by the Administrative Agent)
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include (x) any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses clause (b), (d), (f) or (g) of the definition of “Excluded Subsidiary” or (y) any Equity Interests of a Subsidiary that is an Excluded Subsidiary by reason of clause (h) of the definition of “Excluded Subsidiary” and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of “Excluded Subsidiary Subsidiary” of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b), unless, in each case of the foregoing, such delivery or action is required under the Existing Credit Agreement.
(c) Promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereofthereof or such longer period as may be agreed by the Administrative Agent, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Closing Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent, the Administrative Agent and XxxxxxxNielsen. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or Debt, the Senior Unsecured Debt or the Existing Credit Agreement shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
(f) As of the Closing Date, the security that has been granted in jurisdictions outside of the United States is described in the Existing Security Documents and the other Collateral Documents described in clauses (l), (m), (n) and (o) of Section 4.02, and is comprised of, (i) in the Netherlands, a right of pledge over intercompany receivables by The Xxxxxxx Company B.V., the Dutch Borrower, VNU International B.V., RSMG Insights Coöperatief U.A. and TNC Europe B.V, and rights of pledge over shares in the Dutch Borrower, VNU International B.V. and TNC Europe B.V., and rights of pledge over membership in RSMG Insights Coöperatief U.A. and in Luxembourg pledges of certain equity interests in Xxxxxxx Holdings Luxembourg S.à x.x., The Xxxxxxx Company (Luxembourg) S.à x.x. and Xxxxxxx Luxembourg S.à x.x.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (ai) Subject to the terms and conditions of any intercreditor agreement then in effect to which Party A is a party and this Section 6.11 and Section 6.13(b)Part 15, with respect to any property acquired after the Closing Effective Date by any Loan Transaction Party that is of the same type as that included as Collateral and that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof (or such longer period of time as may be permitted by written consent of Party A)) (i) execute and deliver to the Administrative Agent and the Collateral Agent Party A such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent Party A shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, Party A a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) at the request of Party A, take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Party A. Each Transaction Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Party A such documents as the Administrative Agent or the Collateral Agent Party A shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(bii) With Subject to the terms and conditions of any intercreditor agreement then in effect to which Party A is a party, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing DateEffective Date (other than USOT WA), promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all or such longer period of the Equity Interests of such Subsidiary owned time as may be permitted by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank written consent by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiA) cause any such new Subsidiary (A1) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and “Guarantor” hereunder, by executing a guarantee substantially in the form attached hereto as Annex B (or executing a joinder agreement to the applicable Collateral Documents (including the Security Agreementa Guarantee), substantially (2) to take such steps as are set forth in Section 8.17 of the form annexed thereto, or, in the case of Collateral Agreement to become a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, “Grantor” thereunder and (B3) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent Party A to cause the each Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement Agreement in accordance with all applicable Applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by Party A.
(iii) Subject to the Administrative Agent terms and conditions of any intercreditor agreement then in effect to which Party A is a party, with respect to any new Subsidiary created or acquired after the Collateral Agent. Notwithstanding the foregoingEffective Date by Party B or any Subsidiary, promptly cause such new Subsidiary (1) to become a Guarantor hereunder, by executing a guarantee substantially in the Equity Interests required form attached hereto as Annex B (or executing a joinder agreement to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (bGuarantee), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception such steps as are set forth in clause Section 8.17 of the Collateral Agreement to become a “Grantor” thereunder, (13) to take such actions reasonably necessary or advisable to grant to Party A a perfected security interest in the Collateral described in the Collateral Documents with respect to Equity Interests such new Subsidiary, including the filing of a Foreign Subsidiary that is an Excluded Subsidiary financing statements in such jurisdictions as may be required by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Collateral Documents or by law or as may be reasonably requested by Party A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary , and (B4) 100% of the Equity Interests not constituting voting stock of any such Subsidiaryif reasonably requested by Party A, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as Party A legal opinions relating to the Administrative Agent or the Collateral Agent matters described above, which opinions shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).Party A.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(eiv) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Collateral Document to the contrary, Liens in no event shall the Collateral include, and no Transaction Party shall be required to be granted from time take any action to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth create, grant or perfect a security interest in Excluded Property (as defined in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessAgreement).
Appears in 1 contract
Samples: First Lien Isda Schedule (Par Pacific Holdings, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 6.12 and Section 6.13(b)6.14(b) and to the Agreed Security Principles, with respect to (x) any property located in the United States (excluding Equity Interests not subject to the delivery obligations of Section 6.12(b) pursuant to the terms thereof, to the extent such Equity Interests are deemed “located in the United States” for any reason) or (y) material property, in respect of IP Rights, in the case of (x) or (y), acquired after the Closing Term Loan Escrow Release Date by any Loan Party that is a Domestic Subsidiary that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 one hundred and twenty (120) days after the acquisition thereofthereof or such later time as the Administrative Agent or the Collateral Agent, as applicable, acting reasonably and in good faith, agrees to) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable in good faith to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured PartiesParties or to the relevant Secured Parties directly, as applicable, a Lien on such property subject to no Liens other than Liens permitted hereunderpursuant to Section 7.06, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested in good faith by the Administrative Collateral Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority (subject to the Intercreditor Agreements) of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With Subject to the Agreed Security Principles with respect to any Person that is or becomes a direct direct, first-tier Subsidiary of the Company or a Loan Party that is a Domestic Subsidiary (other than a securitization entity of a Loan Party Party) after the Closing Term Loan Escrow Release Date, promptly (and in any event within 60 one hundred and twenty (120) days after such Person becomes such a Subsidiary) Subsidiary or such later time as the Administrative Agent or the Collateral Agent, as applicable, acting reasonably and in good faith, agrees to)
(i) deliver to the Collateral Agent the certificates, if any, all certificates representing all of the Equity Interests (to the extent certificated) of such Subsidiary owned by such Loan Party, Party that are required to be pledged pursuant to the Collateral and Guaranty Requirement and together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all existing intercompany notes other than (x) held by any securitization entity or Basell Sales & Marketing B.V. or (y) which on an individual basis do not exceed €10,000,000 owing from such Subsidiary to any Loan Party that is a Domestic Subsidiary and required to be pledged pursuant to the Collateral and Guaranty Requirement, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Security Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary that is required to be a Guarantor under the Collateral and Guaranty Requirement (A) to execute a joinder agreement reasonably acceptable to the Administrative Collateral Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Security Documents (including the applicable Security Agreement)) and the Guarantee Agreement , substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested in good faith by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Subject to the Agreed Security Principles, in the case of a Loan Party that is a Domestic Subsidiary, promptly grant to the Collateral Agent, within 60 one hundred and twenty (120) days of the acquisition thereofthereof or such longer period as the Collateral Agent may determine, acting reasonably and in good faith, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property located in the U.S. and owned in fee by or otherwise with legal title in, or ground leased by, such Loan Party as is acquired by such Loan Party after the Closing Term Loan Escrow Release Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 25,000,000 as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant .
(i) Subject to documentation the Agreed Security Principles, in the case of a Loan Party that is a Domestic Subsidiary promptly grant to the Collateral Agent, within one hundred and twenty (120) days of the acquisition thereof or such longer period as the Collateral Agent may determine acting reasonably and in good faith, a Mortgage in form reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent on each pipeline easement and shall constitute valid and enforceable perfected Liens other similar Real Property (except any such easement or other similar Real Property as would be excluded from the grant set forth in Section 2.1 of the applicable Mortgage in the penultimate paragraph therein) as is acquired by such Loan Party that is a Domestic Subsidiary after the Term Loan Escrow Release Date as additional security for the Obligations (unless the subject only property is already mortgaged to Liens a third party to the extent permitted hereunder. The ).
(ii) Such Mortgages shall be subject to the Agreed Security Principles and the Legal Reservations, and the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent and/or the Secured Parties required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Subject to the Agreed Security Principles, such Loan Party that is a Domestic Subsidiary shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policytitle policy), a Survey survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage); provided that, no title policy, survey or legal counsel opinion shall be required with respect to any pipeline easement or similar Real Property.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts existing as of the Closing Date or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liabilityLaw. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the BorrowersBorrower, that perfection cannot be accomplished without undue effort or expense using commercially reasonable efforts by the time or times at which it would otherwise be required by this Agreement or the Collateral Security Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 6.12 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to this Section 6.11 6.12 shall be subject to the Agreed Security Principles, the Legal Reservations and exceptions and limitations set forth in the Collateral Security Documents as in effect on the Amendment Effective Closing Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxxthe Company. Notwithstanding the foregoing provisions of this Section 6.11 6.12 or anything in this Agreement or any other Loan Document to the contrary, any direct, first-tier Restricted Subsidiary of the Company or any other Domestic Subsidiary of the Borrower that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt any Junior Financing shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 thirty (30) days after the acquisition thereof, provided that the Administrative Agent may agree to an extension thereof in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Restricted Subsidiary after the Closing Date (other than (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), or any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Loan Party after by operation of the Closing Dateprovisions of Section 5.11(d), promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiaryRestricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), provided that the Administrative Agent may agree to an extension of such time period in its sole discretion) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Restricted Subsidiary that is a Wholly Owned Subsidiary (other than (A) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (B) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), in each case to the extent not prohibited by Applicable Law, (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (or, in the case of a Subsidiary organized under the laws of the United States or any state thereof or the District of Columbia, a U.S. Borrower) and a joinder agreement agreements to the applicable Collateral Security Documents (including the Security Agreement)in each case, substantially in the form annexed thereto, thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute a security agreement such other Security Documents (or joinder agreements) to the extent possible under and compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement in accordance with all applicable Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(bparagraph (b) shall not include any apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any requirement of Applicable Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Foreign Lien on such Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary that is an Excluded a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary by reason of clauses (bbut only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), (d)y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (f) or (g) other than any of the definition foregoing entered into with any Company or any Affiliate of Excluded any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause paragraph (1b) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Aany Company listed on Schedule 5.11(b) voting stock to the extent any requirement of any Subsidiary that is Applicable Law prohibits it from becoming a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Loan Party.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15 million as additional security for the Obligations 10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), as additional security for the Secured Obligations. Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid valid, perfected and enforceable perfected First Priority Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy (or title opinion reasonably satisfactory to the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) The foregoing shall If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) Loan Parties because they are Excluded Collateral Subsidiaries comprise in the reasonable judgment aggregate more than 7.5% of the Administrative AgentConsolidated Total Assets of Parent Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of Parent Borrower and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the cost of creating Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement, cause one or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be excessive in view true. The Administrative Borrower may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the benefits Parent Borrower on the Closing Date as an Excluded Collateral Subsidiary subject to be obtained by the Lenders therefrom or (ii) terms of the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granteddefinition thereof, in which case event the Borrowers Guarantee by such Restricted Subsidiary shall use their commercially reasonable efforts to obtain such approval, unless be released in accordance with Section 7.09 and the Administrative Collateral Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or release the Collateral Documentspledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Management System or the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(f) Notwithstanding the foregoing provisions any other provision of this Section 6.11 or anything in this Agreement or any other Loan Document 5.11 to the contrary, Liens required in no event shall this Section 5.11 obligate any Loan Party to be granted from time xxxxx x Xxxx to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or on any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessExcluded Property.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of this Section 6.11 and Section 6.13(b)5.11, with respect to any personal property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by constitutes “Collateral” (other than Excluded Property) under any of the Collateral Security Documents but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 30 days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable United States state and federal law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) to the extent reasonably requested by the Administrative Agent, deliver opinions of counsel to Borrower in form and substance, and from counsel, reasonably acceptable to the Administrative Agent and (iii) other than Excluded Perfection Steps, take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawUnited States state, federal or local Legal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any (x) Person that is or becomes a direct Subsidiary (other than an Immaterial Subsidiary) of a Loan Party after the Closing DateDate (other than a merger subsidiary formed in connection with a Permitted Acquisition so long as such merger subsidiary is merged out of existence pursuant to such Permitted Acquisition within 30 days of its formation thereof (or such later date as permitted by the Administrative Agent in its sole discretion)) or (y) any Subsidiary designated as an Immaterial Subsidiary that fails to comply with the requirements set forth in the definition of “Immaterial Subsidiaries”, promptly (and in any event within 60 30 days after such Person becomes a Subsidiary or ceases to be an Immaterial Subsidiary) , or such longer period as the Administrative Agent may approve in its sole discretion (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party required to be delivered pursuant to the Security Agreement or other applicable Security Document together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary except any Foreign Subsidiary that is a controlled foreign corporation (Aas defined in Section 957 of the Code) (a “CFC”) (1) to execute a joinder agreement reasonably acceptable agreement, in the form attached as Exhibit 3 to the Administrative Agent or such comparable documentation Security Agreement, to become a Subsidiary Guarantor hereunder and a joinder agreement to the applicable Collateral Documents Pledgor (including as defined in the Security Agreement), substantially in the form annexed thereto, or) under Security Agreement and, in the case of a Foreign SubsidiarySubsidiary (other than a CFC) (unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with applicable foreign law is excessive in relation to the value of the security to be afforded thereby), execute a security agreement such other Security Documents as are compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction and are necessary or advisable, in the reasonable judgment of the Administrative Agent, to provide for a valid and perfected security interest in the Collateral held by such Foreign Subsidiary, in form and substance reasonably satisfactory to the Administrative Agent, (2) to the extent reasonably requested by the Administrative Agent, to deliver opinions of counsel to such Foreign Subsidiary (other than a CFC) in form and substance, and form counsel, reasonably satisfactory to the Administrative Agent and (B3) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under United States federal and applicable state law (and applicable foreign law, unless the Administrative Agent shall determine in its reasonable discretion in consultation with Borrower that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) to the extent required by such agreement agreements in accordance with all applicable LawLegal Requirements, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding ; provided, that, in the foregoingcase of a CFC, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply limited to (Ax) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power Voting Stock of all outstanding voting stock of any such Subsidiary which is owned directly by Borrower or any Domestic Subsidiary of Borrower and (By) 100% of the Equity Interests not constituting voting stock Voting Stock of any such SubsidiarySubsidiary (which pledge shall be documented under United States law and applicable foreign law, except unless the Administrative Agent shall determine in its sole discretion that any the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby). Notwithstanding the foregoing, no Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) any Foreign Subsidiary that is not owned directly by Borrower or a Domestic Subsidiary of Borrower shall be treated as voting stock for purposes of this Section 6.11(b)pledged hereunder or under any other Loan Document.
(c) Promptly grant With respect to any Person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 15 Business Days after such Person becomes a Subsidiary) execute and deliver to the Collateral AgentAgent (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, within 60 days an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary; provided, the Immaterial Subsidiaries listed on Schedule 5.11(c) hereto, each of which the acquisition thereofBorrower expects to dissolve on or prior to August 15, 2013 (each, a security interest in and mortgage in “Dissolving Immaterial Subsidiary”) shall not be required to become a form reasonably satisfactory party to the Intercompany Note unless either (1) such Immaterial Subsidiary is not dissolved on or prior to August 15, 2013 (or such longer period as the Administrative Agent and Collateral Agent may agree in its sole discretion) or (a “Mortgage”2) on each parcel such Immaterial Subsidiary no longer qualifies as an Immaterial Subsidiary pursuant to the definition thereof.
(d) Upon acquisition of any Real Property owned in fee by such Loan Party as is acquired by such Loan Party in the United States after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 2,000,000, promptly give written notice to the Administrative Agent with respect thereof, and grant to the Collateral Agent, within 90 days of the acquisition thereof (or such longer period as the Administrative Agent may approve), a security interest in and Mortgage on such Real Property as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected first priority Liens in the United States under state or local law subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such customary documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property request (including (i) a Title Policy, (ii) a Survey and Survey, (iii) a local counsel opinion (in form and substance and issued by a party reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
, (div) The foregoing shall an environmental assessment prepared by any environmental consultant, and in form and substance, reasonably satisfactory to the Collateral Agent that does not require the creation or perfection of pledges of or security interests in, disclose any Environmental Claims or the obtaining of title insurance or surveys with respect to, particular assets if potential for an Environmental Claim and for so long (v) evidence that no improvements located on such Real Property are located in an area designated as (i) a “flood hazard area” in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained any Flood Insurance Rate Map published by the Lenders therefrom Federal Emergency Management Agency (or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approvalsuccessor agency), unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required applicable Loan Party has complied with Section 5.04(d)(i) with respect to such assetsthereto). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject Except as provided in Section 7.10(c) below, subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)7.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Loan Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) ), such Loan Party shall (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Loan Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Permitted Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Loan Documents in accordance with all applicable Lawlaw, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Subject to the terms of the Intercreditor Agreement, the applicable Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Loan Documents on such after-acquired properties.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person that is or becomes a direct Parent Company or a Subsidiary of a Loan Party after the Closing Date, the applicable Loan Party shall promptly (and in any event within 60 days after such Person becomes a Subsidiary) (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartyParent Company or Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments ; provided that (x) only 65% of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such outstanding voting Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Foreign Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or100%, in the case of a Canadian Subsidiary) and 100% of the outstanding non-voting Equity Interests of any Foreign Subsidiary, in each instance, that is a direct Subsidiary of a Loan Party shall be required to be delivered pursuant to this clause (i) and (y) the Equity Interests of any Subsidiary that is a Subsidiary of a Foreign Subsidiary (other than a Canadian Subsidiary) shall not be required to be delivered pursuant to this clause (i), and (ii) cause such new Parent Company or such new Subsidiary, if such Subsidiary is not a Foreign Subsidiary (other than a Canadian Subsidiary), (A) to execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction joinder agreements, in form and substance reasonably satisfactory to the Administrative Agent, to this Agreement (to become a Loan Party and a Guarantor hereunder) and the other relevant Loan Documents as requested by the Administrative Agent (to grant Agent’s Liens in the assets of such Parent Company or Subsidiary) and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent or the Collateral Agent to cause the Lien Liens created by the applicable Collateral such Loan Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Lawlaw, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Subject to the terms of the Intercreditor Agreement, each Loan Party shall promptly grant to the Collateral Administrative Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as that is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1,000,000 and (ii) each leased Real Property of such Loan Party, which lease (x) has annual rental payments of at least $1,000,000 and (y) is not a lease of an administrative or sales office or unimproved real property or other property for which the Administrative Agent does not require a Mortgage, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.14); provided, that a Loan Party shall not be in violation of clause (ii) above with respect to a leased Real Property if the granting of a Mortgage with respect to such leased Real Property in accordance with this Section 7.10(c) requires the consent of the landlord under the lease therefor and such landlord has failed to grant such consent after such Loan Party shall have used commercially reasonable efforts to obtain such consent. Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Subject to the terms of the Intercreditor Agreement, such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Revolving Credit Agreement (Foamex International Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 5.11 and Section 6.13(bexcept to the extent the Administrative Agent (after consultation with Borrower) determines that any of the following is not commercially reasonable (taking into account the expense of obtaining the same, the ability of Borrower or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any property assets acquired after the Closing Date by Borrower or any other Loan Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is that are not so subject, and with respect to any assets held by Borrower or any other Loan Party on the Closing Date not made subject to a Lien created by any of the Security Documents but of a type intended to be subject to the Lien created by the applicable Security Documents (but, in any event, excluding any assets described in Section 5.11(b)), promptly (and in any event within 60 days after the acquisition thereof) thereof or upon the Administrative Agent’s request): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property properties or assets, subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Collateral Agent. The Borrowers Borrower or any such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired propertiesproperties or assets, and such assets held on the Closing Date not made subject to a Lien created by any of the Security Documents.
(b) With To the extent the Administrative Agent (after consultation with Borrower) determines that any of the following is commercially reasonable (taking into account the expense (including taxes) of obtaining the same, the ability of Borrower or the relevant Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law), with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party becomes, after the Closing Date, promptly a Wholly Owned Subsidiary directly owned by a Loan Party (a “New Wholly Owned Subsidiary”), promptly, and in any event within no later than 60 days after each such Person person becomes a New Wholly Owned Subsidiary) , cause such Subsidiary (i) to become a Guarantor and deliver to the Collateral Agent the certificates, if any, certificates representing all of the Equity Interests of such Subsidiary owned by (provided, that, in no event shall the stock of any such Loan PartySubsidiary be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Subsidiary’s parent, as the case may be, and all Intercompany Notes owing from such Subsidiary to any Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties Party; and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)documentation, substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the each Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Collateral Agent or the Collateral Agent. Notwithstanding the foregoing(provided, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) that any such Subsidiary shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in comply with clause (iiii)(A) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) above if satisfying such requirements is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law).
(c) Notwithstanding anything to the contrary contained herein, in the case of any (x) New Wholly Owned Subsidiary that has not previously become (and, if so, does not remain) a Guarantor or (y) other Non-Guarantor Subsidiary directly owned by a Loan Party, 66% of the Equity Interests of any such Subsidiary (and 100% of the Equity Interests not constituting voting stock of any such Domesticated Foreign Subsidiary) (exclusive, except that however, of Herbalife China LLC, Herbalife Del Ecuador, S.A., Herbalife International Products, N.V. or any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2Immaterial Subsidiary) shall be treated as voting stock for purposes subject to a Lien or be required to be pledged under the applicable Loan Document (except to the extent the Administrative Agent, after consultation with Borrower, determines that such Lien or pledge is not commercially reasonable (taking into account the expense, including taxes, of this Section 6.11(bobtaining the same, the ability of Borrower or such Subsidiary to obtain any necessary approvals or consents required to be obtained under applicable law in connection therewith, and the effectiveness and enforceability thereof under applicable law)).
(cd) Promptly Upon the written request of the Administrative Agent (provided, that, except as otherwise provided in Section 5.12, the Administrative Agent shall not make such written request if (after consultation with Borrower) it determines that any of the following is not commercially feasible (taking into account the expense of obtaining the same and the effectiveness and enforceability thereof under applicable law)), each Loan Party will promptly grant to the Collateral Agent, within 60 days of the acquisition thereofsuch request, a security interest interests and Mortgages in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of such owned Real Property owned in fee by of such Loan Party located in the United States as is acquired by such Loan Party after the Closing Date by Borrower or such Subsidiary and thatthat is used for warehouse, together with any improvements thereonmanufacturing, individually distribution, or laboratory purposes, has a fair market value as determined in good faith by the Administrative Agent in excess of at least $15 5.0 million or is otherwise material to the business operations of Borrower or such Subsidiary, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderand such other Liens reasonably acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (within 60 days of the written request of the Collateral Agent, including a Title Policy, a Survey survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and all of the following items in respect of such Mortgage).:
(di) The foregoing Mortgages encumbering each Mortgaged Real Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by the Loan Party that is the owner of such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, and such certificates, affidavits, questionnaires or returns as shall not require be required in connection with the creation recording or perfection filing thereof to create a Lien under applicable law, and such UCC financing statements and fixture filings, all of pledges which shall be in form and substance reasonably satisfactory to Collateral Agent, and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction;
(ii) with respect to each Mortgage, a policy (or security interests in, or the obtaining commitment to issue a policy) of title insurance insuring (or surveys committing to insure) the Lien of such Mortgage as a valid first mortgage Lien on the Real Property and fixtures described therein in an amount equal to the fair market value of such Real Property which policies (or commitments) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with respect toprovisions for direct access, particular assets if and for so long necessary) as shall be reasonably acceptable to the Collateral Agent, (iC) in the reasonable judgment contain a “tie-in” or “cluster” endorsement (if available under applicable law) (i.e., policies that insure against losses regardless of location or allocated value of the Administrative Agentinsured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Collateral Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot opinions can be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance obtained at a cost that is reasonable with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets value of the Loan Parties on Real Property subject to such dateMortgage) where it as shall be requested reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date andAgent, to the extent appropriate such endorsements are available in the applicable jurisdictionjurisdiction (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien and so-called comprehensive coverage over covenants and restrictions), and (E) contain no exceptions to title other than exceptions for the Permitted Liens applicable to such Mortgaged Real Property and otherwise acceptable to the Collateral Agent;
(iii) with respect to each Mortgaged Real Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap,” “mechanics lien,” and “owner’s” indemnifications and affidavits) as agreed between shall be required to induce the Title Company to issue the Title Policy/ies (or commitment) and endorsements contemplated in clause (iii) above;
(iv) evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, escrow, search and Xxxxxxx. Notwithstanding examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the foregoing provisions recording of this Section 6.11 or anything the Mortgages and issuance of the Title Policies referred to in this Agreement or any other Loan Document clause (iii) above; and
(v) with respect to each Mortgaged Real Property, Borrower and each Subsidiary shall have made all notification, registrations and filings, to the contraryextent required by, any Subsidiary and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Real Property, including the use of forms provided by state or local agencies, where such forms exist, whether to Borrower or to or with the Company that Guarantees the Senior Subordinated Debt state or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednesslocal agency.
Appears in 1 contract
Samples: Credit Agreement (Herbalife Ltd.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b)3.18, Section 4.01(l) and Section 5.15, with respect to any personal property acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 days after the acquisition thereof) , or such longer period as the Administrative Agent may approve in each case in its sole discretion, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other New York law governed documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law (or, solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary) on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law (or, including solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary), including, in the case of Domestic Subsidiaries that are Guarantors, the filing of financing statements and intellectual property security agreements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law (or, solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary) governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to any Person the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is or becomes a direct Wholly Owned Restricted Subsidiary of a Loan Party (other than any Excluded Subsidiary) after the Closing DateDate (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition, promptly or otherwise merged out of existence or dissolved, within 60 days of its formation (and or such later date as permitted by the Administrative Agent in its sole discretion)), upon any event Excluded Subsidiary ceasing to constitute an Excluded Subsidiary or upon Borrower’s determination (in its sole discretion) that an Excluded Subsidiary shall be joined as a Guarantor, within 60 days after such Person becomes a Subsidiary) formation, acquisition, designation, determination or cessation, or such longer period as the Administrative Agent may approve in its reasonable discretion, the Borrower shall:
(i) if such Subsidiary is a Wholly-Owned Restricted Subsidiary of a Domestic Subsidiary that is a Credit Party or of a Foreign Subsidiary that is a Credit Party and in whose jurisdiction of organization the following is customary in similar financing transactions, deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly Owned Restricted Subsidiary owned by such Loan Partythat constitute Collateral and that are “certificated securities” (as defined in Article 8 of the UCC), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect as applicable, and all other Collateral that is required to Foreign Subsidiaries, be delivered pursuant to the extent Security Agreements or other applicable Security Document and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and not previously so delivered; and
(ii) cause any such new Wholly Owned Restricted Subsidiary (except Excluded Subsidiaries), (A) to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and or, to the extent the Borrower elects to join such Subsidiary as a co-borrower, in compliance with Section 2.24 hereof, (if such subsidiary is a Domestic Subsidiary) a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of or (if such Subsidiary is a Foreign SubsidiarySubsidiary that is an Excluded Subsidiary the Borrower elects in its sole discretion to join as a Guarantor) such security documentation as may be customary in its jurisdiction of organization, execute a security agreement compatible with as reasonably agreed between the Laws of such Foreign Subsidiary’s jurisdiction in form Borrower and substance reasonably satisfactory to the Administrative Agent, and Agent and
(iii) (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents and, as applicable, the Agreed Security Principles) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state law (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Foreign Subsidiary) to the extent required by such agreement agreements in accordance with all applicable Requirements of Law, (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Foreign Subsidiary), including (in the case of a Domestic Subsidiary that is not a Guarantor) the filing of financing statements and intellectual property security agreements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing; provided that, (1y) the no pledge of Excluded Equity Interests shall be required, and (z) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), mortgage, deed of trust, deed to secure debt, leasehold mortgages, landlord waivers or collateral access agreements shall be required to be delivered entered into under the laws of any jurisdiction. Notwithstanding anything to the Collateral Agentcontrary, or on which a Lien is required in the event that the Borrower shall at any time desire to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of join a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b)as a Guarantor, (d), (f) or (g) of the definition of Excluded Subsidiary Borrower and (2) no Excluded Subsidiary or Unrestricted Subsidiary the Administrative Agent shall be required reasonably negotiate in good faith to take the actions specified in clause (ii) of amend this Section 6.11(b); provided that the exception set forth in clause (1) with respect Agreement to Equity Interests of subject guarantee and collateral requirements vis a vis any such Foreign Subsidiary that is an Excluded Subsidiary by reason that Borrower elects (in its sole discretion) to join as a Guarantor, to “agreed security principles” that are customary for the jurisdiction of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock organization of such Foreign Subsidiary and for facilities similar to those provided for in this Credit Agreement (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary“Agreed Security Principles”), except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxesguarantee and collateral requirements hereunder and under the other Loan Documents shall, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In additionForeign Subsidiary Guarantor, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject in all cases to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessAgreed Security Principles.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)the terms of the Intercreditor Agreement, with respect to any property acquired after the Closing Date by any Loan Party (including, without limitation, any acquisition pursuant to an LLC Division) that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 90 days after the acquisition thereof, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Lawrequirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Company shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Domestic Subsidiary (including, without limitation, pursuant to an LLC Division) (other than (1) a Domestic Subsidiary of a Loan Party Foreign Subsidiary that is a CFC, (2) a Domestic Subsidiary that owns (directly or through one or more entities that are disregarded for U.S. federal income tax purposes) no material assets other than Equity Interests in one or more Foreign Subsidiaries that are CFCs, (3) an Unrestricted Subsidiary or (4) any Domestic Subsidiary that is prohibited (but only for so long as such Domestic Subsidiary would be prohibited) by applicable law or by contractual obligations existing at the time of acquisition (but not entered into in contemplation thereof) from guaranteeing the Obligations or if guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization) that is a Material Subsidiary after the Closing DateDate (i) cause such new Domestic Subsidiary, promptly (and in any event within 60 90 days after such Person becomes a Material Subsidiary, or such longer period as may be agreed to by the Administrative Agent in its sole discretion) (iA) to execute a Guaranty and Security Agreement Joinder and, (B) to take all actions necessary or advisable in the opinion of the Administrative Agent to cause the Lien created by the Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable requirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and (C) deliver any know-your-customer or other background diligence information reasonably requested by the Administrative Agent or any Lender with respect to such Subsidiary and (ii) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned (and those held by such Loan PartySubsidiary in other Subsidiaries to the extent required by the Security Agreement), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and and, to the extent required by the Security Agreement, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party Party; provided that prior to the Discharge of Fixed Asset Obligations (as defined in each case, with respect to Foreign Subsidiariesthe Intercreditor Agreement), to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor any of the Collateral foregoing constitutes “Fixed Asset Collateral” as defined in the Intercreditor Agreement, the obligation to deliver such certificates, stock powers and other instruments of transfer and notes shall be deemed satisfied by delivery to the Term Loan Agent, as bailee for the Administrative Agent on behalf pursuant to the terms of the Secured Parties and Intercreditor Agreement.
(iic) With respect to any Person that becomes a Specified Pledgor or any Specified Pledgor that acquires Equity Interest of a first tier Foreign Subsidiary, within 90 days (x) if such Specified Pledgor is not party to the Pledge Agreement, cause any such new Subsidiary (A) Specified Pledgor to execute a joinder agreement reasonably acceptable to the Pledge Agreement in substantially the form annexed thereto and (y) cause such Specified Pledgor to take all actions necessary or advisable to cause the Liens created by the Pledge Agreement to be duly perfected to the extent required by the Pledge Agreement.
(d) For the avoidance of doubt and notwithstanding anything to the contrary in any of the Loan Documents, in no event shall any (i)(x) non-Wholly Owned Subsidiary or (y) newly-formed Subsidiary that is intended to be and becomes a non-Wholly Owned Subsidiary within 90 days of its formation, be required to become a Guarantor or party to the Security Agreement; and (ii) action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction).
(e) No Real Property shall be included in the Borrowing Base as of the Closing Date. Following the Closing Date, the Company will grant and cause each of the other Borrowers and the Guarantors to grant to the Administrative Agent or security interests in, and Mortgages on, any Real Property of such comparable documentation Loan Parties that the Company designates to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially be included in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction Borrowing Base pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent Company, which security interest and Mortgage shall constitute valid and enforceable perfected Liens subject only to no other Liens permitted hereunder. The Mortgages except Permitted Encumbrances and record, register or file, and cause each such Restricted Subsidiary to record, register or file, the Mortgage or instruments related thereto shall be duly recorded or filed in such manner and in such places as are is required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Restricted Subsidiary to pay, in full, all taxesTaxes, fees and other charges payable in connection therewith shall required to be paid in full. Such Loan Party connection with such recording, registration or filing provided, however, that in no event shall a Mortgage be deemed executed and delivered to Administrative Agent until the Administrative Agent has received all applicable certificates, acknowledgments, evidence and other materials required under clause (c) of the definition of “Related Real Property Documents.” Unless otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as waived by the Administrative Agent or the Collateral applicable Lender (solely with respect to clause (i)(B) below), with respect to each such Mortgage, the Borrowers shall cause the following requirements to be satisfied with respect to such Real Property:
(i) the Administrative Agent shall reasonably require have received:
(A) (i) counterparts of each Mortgage to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against be entered into with respect to each such after-acquired Real Property duly executed and delivered by the record owner of such Real Property and suitable for recording, registering or filing (including together with any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all filing, registration or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a Title Policyvalid and enforceable Lien subject to no other Liens except Permitted Encumbrances, a Survey at the time of filing, registration or recordation thereof and local counsel opinion (in form ii) such counterparts of each Mortgage shall have been deemed released and substance reasonably satisfactory delivered to the Administrative Agent and pursuant to the Collateral Agent) in respect terms of such Mortgage).this Agreement; and
(dB) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment all of the Administrative Agent, the cost of creating or perfecting Related Real Property Documents for such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or Real Property; and
(ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless confirmation from the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required all flood insurance due diligence and flood insurance compliance with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsReal Property has been completed.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with With respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 90 days after the acquisition thereof, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Lawrequirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Company shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Domestic Subsidiary (other than (1) a Domestic Subsidiary of a Loan Party Foreign Subsidiary that is a CFC or (2) a Domestic Subsidiary that owns no material assets other than Equity Interests in one or more Foreign Subsidiaries that are CFCs) that is a Material Subsidiary after the Closing Date, Date (i) promptly (and in any event within 60 90 days after such Person becomes a Material Subsidiary) (i, or such longer period as may be agreed to by the Administrative Agent in its sole discretion) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartyDomestic Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Domestic Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary Domestic Subsidiary, promptly (and in any event within 90 days after such Person becomes a Material Subsidiary, or such longer period as may be agreed to by the Administrative Agent in its sole discretion) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to thereto or as otherwise agreed by the Administrative Agent, Agent and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Lawrequirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly For the avoidance of doubt and notwithstanding anything to the contrary in any of the Loan Documents, in no event shall any (i) non-Wholly Owned Subsidiary or (ii) newly-formed Subsidiary that is intended to be and becomes a non-Wholly Owned Subsidiary within 90 days of its formation, be required to become a Guarantor or party to the Security Agreement.
(d) The Company will grant and cause each of the other Borrowers and the Guarantors to grant to the Collateral AgentAdministrative Agent security interests in, and mortgages on, any Material Real Property of such Loan Parties, as applicable, that are not Mortgaged Property as of the Closing Date, to the extent acquired after the Closing Date, within 60 ninety (90) days of after such acquisition (or such later date as the acquisition thereof, a security interest Administrative Agent may agree in its reasonable discretion) pursuant to documentation in form and mortgage in a form substance reasonably satisfactory to the Administrative Agent and Collateral Agent the Company (a each, an “Additional Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date ), which security interest and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and mortgage shall constitute valid and enforceable perfected Liens subject only to no other Liens permitted hereunder. The Mortgages except Permitted Liens and record, register or file, and cause each such subsidiary to record, register or file, the Additional Mortgage or instruments related thereto shall be duly recorded or filed in such manner and in such places as are is required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all taxesTaxes, fees and other charges payable in connection therewith shall required to be paid in fullconnection with such recording, registration or filing, in each case subject to the penultimate paragraph of this Section 7.08(d). Such Unless otherwise waived by the Administrative Agent or the applicable Lender (solely with respect to clause (i)(B) below), with respect to each such Additional Mortgage, the Borrowers shall cause the following requirements to be satisfied with respect to such Material Real Property:
(i) (A) the Administrative Agent shall have received with respect to each Mortgaged Property located in the United States of America or any State thereof, at least 10 Business Days prior to the delivery of such Additional Mortgage, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property and, for any Mortgaged Property on which improvements are located in a special flood hazard area, a notice duly executed by the Loan Party that owns such Mortgaged Property acknowledging the special flood hazard area status together with evidence of flood insurance in compliance with Section 7.07 hereof and (B) the Administrative Agent and each Lender (through the Administrative Agent) shall otherwise take such commercially reasonable actions and execute and/or deliver have received with respect to each Mortgaged Property located in the United States of America or any State thereof, at least 10 Business Days prior to the Collateral delivery of such Additional Mortgage, any other reasonable documents or information reasonably requested by the Administrative Agent or any Lender (through the Administrative Agent) to enable such Person to comply, in the determination of the Administrative Agent, with any applicable Flood Insurance Laws and all applicable rules and regulations promulgated pursuant thereto;
(ii) the Administrative Agent shall have received:
(A) counterparts of each Mortgage to be entered into with respect to each such Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording, registering or filing (together with any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all filing, registration or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid and enforceable Lien subject to no other Liens except Permitted Liens, at the time of filing, registration or recordation thereof,
(B) with respect to the Mortgage encumbering each such Mortgaged Property, opinions of local counsel regarding the due authorization, execution and delivery, the enforceability, and perfection of the Mortgages and such other matters customarily covered in real estate mortgage counsel opinions as the Administrative Agent may reasonably request, if and to the extent, and in such form, as local counsel customarily provides such opinions as to such other matters, and
(C) such other documents as the Administrative Agent or may reasonably request that are available to the Collateral Agent shall reasonably require Borrowers without material expense with respect to confirm the validity, perfection and priority of the Lien of any existing such Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).Mortgaged Property; and
(diii) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge have received:
(A) a policy or security interest shall not be required policies or marked up unconditional binder of title insurance (“Mortgage Policy”) with respect to such assets). In additionproperties located in the United States, paid for by the foregoing will not require actions under this Section 6.11 Borrower, in the amount of the fair market value of the respective Mortgaged Property, issued by a Person if nationally recognized title insurance company (“Title Insurer”) insuring the Lien of each Mortgage as a valid Lien on the Mortgaged Property described therein, free of any other Liens except Permitted Liens, together with such customary endorsements, coinsurance and to reinsurance as the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions reasonably request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located (provided, however, that in lieu of time a zoning endorsement, Administrative Agent shall accept a zoning report from a nationally recognized zoning report provider), and
(B) either (x) a survey of each Mortgaged Property (including all improvements, easements and other customary matters thereon reasonably required by the Administrative Agent), as applicable, for the perfection of security interests in or the obtaining of title insurance which all necessary fees (where applicable) have been paid with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests properties located in the assets United States, which (A) complies in all material respects with the minimum detail requirements of the Loan Parties on American Land Title Association and American Congress of Surveying and Mapping as such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as requirements are in effect on the Amendment Effective Date and, date of preparation of such Survey and (B) is sufficient for such Title Insurer to remove all standard survey exceptions from the Mortgage Policy relating to such Mortgaged Property or otherwise reasonably acceptable to the extent appropriate in the applicable jurisdictionAdministrative Agent; provided, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contraryhowever, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees the Title Insurer shall accept the same to eliminate the standard survey exceptions from such IndebtednessMortgage Policy and issue survey-related endorsements, in lieu of a new or revised Survey, Borrowers may provide a “no material change” affidavit with respect to any prior Survey for the respective Mortgaged Property (which prior Survey otherwise substantially complies with the foregoing survey requirements), or (y) if Borrower elects and if reasonably acceptable to the Title Insurer to issue the Mortgage Policy, and ExpressMap (each of (x) and (y), a “Survey”).
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary or a Disregarded Domestic Person not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 60 thirty (30) days after the acquisition thereofthereof or such longer period as may be reasonably acceptable to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, (ii) deliver opinions of counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent (but only if delivery thereof with respect to such property would have been required if the property had been owned on the Closing Date), and (iiiii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document Security Documents in accordance with all applicable LawLegal Requirements (but subject, in any case, to any Permitted Collateral Liens), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Loan Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 thirty (30) days after such Person person becomes a SubsidiarySubsidiary or such longer period as may be reasonably acceptable to the Administrative Agent in its sole discretion), subject to the final sentence of this clause (b) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation Guarantee Joinder Agreement to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement)Guarantor, substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to execute a Security Joinder Agreement to become a Pledgor, (C) deliver customary opinions of counsel to the Loan Parties with respect to such Joinder Agreements and the Loan Documents to which such new Subsidiary becomes a party pursuant to such Joinder Agreements and (D) subject to the terms of the Security Documents, to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Loan Document to be duly perfected to the extent required by such agreement Loan Document in accordance with all applicable LawLegal Requirements, including the filing of financing statements (or equivalent registrations) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b) the preceding sentence shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary a Disregarded Domestic Person and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b)the preceding sentence; provided that the exception set forth contained in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) Foreign Subsidiary or a Disregarded Domestic Person representing 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b); provided, further, that, notwithstanding anything to the contrary, no Equity Interests of any partnership, joint venture or non-Wholly Owned Subsidiary which cannot be pledged without the consent of one or more third parties that are not Affiliates of the Borrower (after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) shall be required to be pledged as Collateral under the Security Documents.
(c) Promptly grant With respect to any person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within thirty (30) days after such person becomes a Subsidiary or such longer period as may be reasonably acceptable to the Administrative Agent in its sole discretion) execute and deliver to the Collateral Agent, or its designee (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary.
(d) Cause the applicable Loan Party to grant within 60 sixty (60) days of the acquisition thereof, thereof (or such longer period as may be reasonably acceptable to the Administrative Agent in its sole discretion) a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Material Real Property owned in fee by such Loan Party as is Party, including any such Material Real Property acquired by such Loan Party after the Closing Date and thatDate; provided, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for that if the Obligations (unless the Distribution Center is subject property is already mortgaged to a third party Lien securing Purchase Money Obligations, the Borrower shall be under no obligation to grant a security interest and Mortgage on such property unless and until requested by the extent permitted hereunder)Collateral Agent and the Administrative Agent and, if so requested, the Borrower shall use commercially reasonable efforts to obtain such security interest or Mortgage. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunderPermitted Collateral Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages Mortgages, and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Material Real Property owned in fee (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage) and shall satisfy all other requirements for Mortgaged Properties set forth on Schedule 5.11(d).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which each case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by within the time or times at which it would otherwise be required by this Agreement or the Collateral Documentslimits specified therein.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Five Below, Inc)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.17, with respect to any property (other than owned Real Property, which is covered in Section 5.10(c) below) acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents (but excluding, for the avoidance of doubt, any assets that are Excluded Collateral) but is not so subject, promptly (and in any event within 60 30 days (or such longer period as may be agreed to by the Lender Representative) after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent Lender Representative shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, subject to any Permitted Revolving Credit Facility Intercreditor Agreement, a first-priority Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent Lender Representative. Notwithstanding anything to the contrary contained in this Agreement, other than with respect to any Foreign Subsidiary (other than the Xxxxxxx German Subsidiaries) that the Borrower has elected, in its sole discretion, to cause to become a Guarantor, in no event shall reasonably require any Company be required to confirm take any action in any non-U.S. jurisdiction or under any laws of any non-U.S. jurisdiction to create any security interests (including the validity, perfection and priority execution of any pledge agreements or security agreements governed under the laws of any non-U.S. jurisdiction) in assets located or titled outside of the Lien of the Collateral Documents on United States or to perfect or make enforceable any security interests in any such after-acquired propertiesassets.
(b) With respect to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly Promptly (and in any event within 60 30 days (or such longer period as may be agreed to by the Lender Representative)) after such Person any person (i) becomes a Wholly Owned Domestic Subsidiary of Holdings (other than an Excluded Subsidiary) after the Closing Date, (iii) ceases to be an Excluded Subsidiary after the Closing Date (but remains a Wholly Owned Domestic Subsidiary of Holdings) or (iii) who is an Excluded Subsidiary but with respect to whom the Borrower has elected, in its sole discretion, to cause to become a Guarantor, in each case, (A) deliver to the Collateral Agent (or the administrative or collateral agent under any Permitted Revolving Credit Facility on its behalf pursuant to the applicable Permitted Revolving Credit Facility Intercreditor Agreement) the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiB) cause any such new Subsidiary (A1) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the Security Agreement and/or each other applicable Collateral Documents Security Document (including the Security Agreementother than, if applicable, any Mortgages that may be required with respect to owned Real Property, which are addressed in Section 5.10(c) below), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, thereto and (B2) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent, the Collateral Agent or the Collateral Agent Lender Representative to cause the Lien created by the Security Agreement and/or any other applicable Collateral Documents (including the Security Agreement) Document to be duly perfected to the extent required by such agreement hereby and thereby in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent, the Collateral Agent or the Collateral AgentLender Representative, but excluding, other than with respect to any Foreign Subsidiary (other than the Xxxxxxx German Subsidiaries) that the Borrower has elected, in its sole discretion, to cause to become a Guarantor, all actions in any non-U.S. jurisdiction or to create and perfect any security interests under any non-U.S. laws; provided, that no Excluded Subsidiary shall be required to guarantee the Obligations and any election to cause an Excluded Subsidiary to guarantee the Obligations shall be at the Borrower’s sole discretion. Notwithstanding the foregoing, including Section 5.10(a), in no event shall (1i) assets of any Subsidiary that is a CFC or CFC Holdco be required to secure the Obligations of a Loan Party or (ii) more than 65% of the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of CFC or first-tier CFC Holdco be required to secure the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Obligations.
(c) Promptly grant to the Collateral Agent, within 60 90 days (or such longer period as may be agreed to by the Lender Representative) of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and thatDate, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party except to the extent permitted hereunder)such Real Property constitutes Excluded Collateral. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent Required Lenders and, upon recording in the applicable land records and the Collateral Agent and subject to any Permitted Revolving Credit Facility Intercreditor Agreement, shall constitute valid and enforceable perfected first-priority Liens subject only to Liens permitted hereunderPermitted Liens. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all Mortgages. In the event any owned Real Property is located in a jurisdiction which imposes mortgage recording taxes, or intangibles tax or any similar fees and other charges payable or charges, such Mortgage shall only secure an amount equal to the fair market value of such Real Property as reasonably determined by the Borrower in connection therewith shall be paid in fullgood faith. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Collateral Agent or the Collateral Agent Required Lenders shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage)Property.
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary created, acquired or established in accordance with a waiver received under Section 6.14 not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a First Priority Lien (subject to any Permitted Collateral Liens) on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause each such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Subsidiary Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, created, acquired or established in accordance with a waiver received under Section 6.14, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Collateral Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may -84- be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of established in accordance with a waiver received under Section 6.14 after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted such Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-first tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-1.956 2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Subject to the creation or perfection terms of pledges of or security interests inthe Intercreditor Agreement, or the obtaining of title insurance or surveys with respect toto any person that becomes an Additional Equity Partner, particular assets if and for so long as concurrently with the consummation of the sale or issuance of the Equity Interests, the Additional Equity Partner shall (i) deliver to the Collateral Agent the certificates representing all of the Equity Interests of the Company acquired by such Additional Equity Partner, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Additional Equity Partner to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) execute a joinder agreement to the applicable Security Agreement, substantially in the reasonable judgment form annexed thereto and to take all actions necessary or advisable in the opinion of the Administrative AgentAgent or the Collateral Agent to cause the Lien created by the applicable Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the cost filing of creating or perfecting such pledges or security interests financing statements in such assets or obtaining title insurance or surveys in respect of such assets shall jurisdictions as may be excessive in view of the benefits to be obtained reasonably requested by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsAgent.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)6.13, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (other than property that is expressly not required to be pledged pursuant to clause (b) below), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person that is or becomes a Subsidiary after the Closing Date (other than any Foreign Subsidiary that is not a direct Subsidiary of a Loan Party after the Closing DateParty), promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by (provided, that with respect to any Foreign Subsidiary, in no event shall more than 65% of the voting Equity Interests of such Loan PartyForeign Subsidiary be subject to the Lien or pledged under the Security Documents), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (other than a Foreign Subsidiary) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of reasonably requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as that is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 7.01). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require . Notwithstanding the creation or perfection of pledges of or security interests inforegoing, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment event the Loan Parties acquire AMR Brockton, L.L.C. as set forth in the last paragraph of the Administrative Agentdefinition of "Permitted Acquisition" and the existing mortgage upon the real property located at 00 Xxxxxxxxxx Xxxx, Xxx 0X, Xxxxxxxx, Xxxxxxxxxxxxx owned by AMR Brockton, L.L.C. in effect on the date of this Agreement is not discharged in connection with such acquisition, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest Loan Parties shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by deliver a Person if Mortgage and to the extent related documents and instruments that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentsparagraph with respect to such property until such time as such existing mortgage is discharged.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b), with With respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 60 90 days after the acquisition thereof, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Liens permitted hereunder, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable Lawrequirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Company shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Administrative Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a direct Domestic Subsidiary of that is a Loan Party Material Subsidiary after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) Date (i) deliver to the Collateral Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartyDomestic Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Domestic Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary Domestic Subsidiary, promptly (and in any event within 90 days after such Person becomes a Subsidiary, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, thereto and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Lawrequirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant For the avoidance of doubt and notwithstanding anything to the Collateral Agent, within 60 days contrary in any of the acquisition thereofLoan Documents, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with no event shall any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom non-Wholly Owned Subsidiary or (ii) the creation or perfection newly-formed Subsidiary that is intended to be and becomes a non-Wholly Owned Subsidiary within 90 days of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be grantedits formation, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by become a Person if and Guarantor or party to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsSecurity Agreement.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.10, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a Second Priority Lien on such property subject to no other Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Second Priority Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties. Prior to the Discharge of First Lien Obligations, (i) the requirements of this Section 5.10(a) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Parent and the Borrower shall, and shall cause each Subsidiary to, comply with the requirements of this Section 5.10(a) with respect to the Obligations hereunder only to the same extent that Parent, the Borrower and such Subsidiaries are required to comply with provisions analogous to this Section 5.10(a) with respect to the First Lien Obligations in the First Lien Credit Agreement.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartyParent or any of its Subsidiaries, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.10(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.10(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a non de minimis increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.10(b). Prior to the Discharge of First Lien Obligations, (i) the requirements of this Section 5.10(b) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Parent and the Borrower shall, and shall cause each Subsidiary to, comply with the requirements of this Section 5.10(b) with respect to the Obligations hereunder only to the same extent that Parent, the Borrower and such Subsidiaries are required to comply with provisions analogous to this Section 5.10(b) with respect to the First Lien Obligations in the First Lien Credit Agreement.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.5 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such U.S. Loan Party which lease individually has a fair market value of at least $1.5 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Subject to the terms of the Intercreditor Agreement, such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). Prior to the Discharge of First Lien Obligations, (i) the requirements of this Section 5.10(c) to deliver to the Collateral Agent any Collateral the security interest in which may be perfected only by possession or control by a single person shall be deemed satisfied by the delivery of possession or control of such Collateral to the First Lien Collateral Agent (as provided in the Intercreditor Agreement) and (ii) Parent and the Borrower shall, and shall cause each Subsidiary to, comply with the requirements of this Section 5.10(c) with respect to the Obligations hereunder only to the same extent that Parent, the Borrower and such Subsidiaries are required to comply with provisions analogous to this Section 5.10(c) with respect to the First Lien Obligations in the First Lien Credit Agreement.
(d) The foregoing shall not require parties hereto agree that the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 5.10 (other than this Section 5.10(d)) shall not apply to Non-Guarantor Subsidiaries. The Borrower may designate any of its Subsidiaries acquired or anything in this Agreement or any other Loan Document formed after the Closing Date as a Non-Guarantor Subsidiary by written notice to the contraryAdministrative Agent; provided, Liens however, that if at any time any Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the aggregate (other than any Foreign Subsidiary that is not required to be granted from time to time pursuant take the actions specified in Section 5.10(b)(ii) by operation of the last sentence of Section 5.10(b)) not otherwise subject to Section 6.11 5.10(b) has assets with either a book value or fair market value in excess of $2.0 million, then the Borrower shall, and shall be subject to exceptions and limitations cause one or more of such Subsidiaries to, comply with Section 5.10(b) within the time frames set forth therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the Collateral Documents as aggregate holds property having either a book value or fair market value in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions excess of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness$2.0 million.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Ply Gem Holdings Inc)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subjectsubject (but, in any event, excluding any Equity Interest of a Foreign Subsidiary created, acquired or established in accordance with a waiver received under Section 6.14 not required to be pledged pursuant to the last sentence of Section 5.11(b)), promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other applicable Secured Parties, a First Priority Lien (subject to any Permitted Collateral Liens) on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause each such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With Subject to the terms of the Intercreditor Agreement, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Subsidiary Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, created, acquired or established in accordance with a waiver received under Section 6.14, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Collateral Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of established in accordance with a waiver received under Section 6.14 after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted such Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger a material increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Administrative Agent; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-first tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-1.956 2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $1.0 million, in each case, as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require Subject to the creation or perfection terms of pledges of or security interests inthe Intercreditor Agreement, or the obtaining of title insurance or surveys with respect toto any person that becomes an Additional Equity Partner, particular assets if and for so long as concurrently with the consummation of the sale or issuance of the Equity Interests, the Additional Equity Partner shall (i) deliver to the Collateral Agent the certificates representing all of the Equity Interests of the Company acquired by such Additional Equity Partner, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Additional Equity Partner to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) execute a joinder agreement to the applicable Security Agreement, substantially in the reasonable judgment form annexed thereto and to take all actions necessary or advisable in the opinion of the Administrative AgentAgent or the Collateral Agent to cause the Lien created by the applicable Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the cost filing of creating or perfecting such pledges or security interests financing statements in such assets or obtaining title insurance or surveys in respect of such assets shall jurisdictions as may be excessive in view of the benefits to be obtained reasonably requested by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral DocumentsAgent.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Samples: Credit Agreement (PGT, Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Order and this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject(as specified in this Section 5.11) or the Orders, promptly (and in any event within 60 days after the acquisition thereof) (i) execute and deliver to the applicable Administrative Agent and the applicable Collateral Agent Agents such amendments or supplements to the relevant Collateral Security Documents or such other documents as the such Administrative Agent or the such Collateral Agent Agents shall deem reasonably deem necessary or advisable to grant to the such Collateral AgentAgents, for its their benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the such Administrative Agent. The Borrowers shall otherwise take such commercially reasonable actions and execute and/or deliver to the applicable Collateral Agent Agents such documents as the applicable Administrative Agent or the such Collateral Agent Agents shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With Subject to the terms of the Orders, with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) pledge and deliver to the applicable Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary, provided that with respect to any Foreign Subsidiary owned by such Loan Partyno more than 65% of the Equity Interests of any first-tier Foreign Subsidiary of US Borrowers or any US Subsidiary (and no stock of any other Foreign Subsidiary) shall be so pledged and delivered as security for the Obligations, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and (ii)(A) deliver to the US Collateral Agent as security for the Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a US Borrower or US Subsidiary and (B) deliver to the Canadian Collateral Agent as security for the Canadian Obligations all intercompany notes owing from such Subsidiary to any Loan Party that is a Canadian Borrower or Foreign Subsidiary, in each case, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (iiiii) cause any (A) if such new Subsidiary (A) is a US Subsidiary, cause such new US Subsidiary to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of (B) if such new Subsidiary is a Foreign Subsidiary, cause such new Foreign Subsidiary to execute and deliver a pledge agreement, security agreement compatible with and guarantee substantially in the Laws form of such Foreign Subsidiary’s jurisdiction in form the applicable Canadian Pledge Agreement, Canadian Security Agreement and substance reasonably satisfactory to the Administrative Agent, Canadian Guaranty and (BC) cause to take all actions necessary or advisable in the opinion of the applicable Administrative Agent or the applicable Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the applicable Administrative Agent or the applicable Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly Subject to the terms of the Orders, promptly grant to the applicable Collateral AgentAgents, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party that is a US Borrower or US Subsidiary, as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 5,000,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Subject to the terms of the Intercreditor Agreements, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the applicable Administrative Agent Agents and the applicable Collateral Agent Agents and shall constitute valid and enforceable perfected First Priority Liens subject only to Permitted Liens permitted hereunderor other Liens reasonably acceptable to the such Collateral Agent. The Subject to the terms of the Intercreditor Agreements, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the applicable Collateral Agent Agents required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the applicable Collateral Agent Agents such documents as the applicable Administrative Agent or the such Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including including, if requested by the applicable Administrative Agent, a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the such Administrative Agent and the such Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation Borrowers may designate any Subsidiary acquired or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond formed after the Closing Date for as a Non-Guarantor Subsidiary by written notice to the perfection applicable Administrative Agent; provided, however, that if at any time any Non-Guarantor Subsidiary or group of security interests Non-Guarantor Subsidiaries in the aggregate (other than any Foreign Subsidiary not otherwise subject to Section 5.11(b)) has assets with either a book value or fair market value in excess of $1.0 million, then the Loan Parties on Borrowers shall, and shall cause one or more of such dateSubsidiaries to, comply with Section 5.11(b) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by within the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations frames set forth therein so that no Non-Guarantor Subsidiary or group of Non-Guarantor Subsidiaries in the Collateral Documents as aggregate holds property having either a book value or fair market value in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions excess of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness$1.0 million.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 6.11 and Section 6.13(b)5.11, with respect to (1) any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, including in connection 972172.01-CHISR01A - MSW with any step of the Permitted Reorganization, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, has ceased to be Excluded Property, promptly (and in any event (x) within 60 thirty (30) days after the acquisition thereofthereof or after the date such property ceases to be Excluded Property; provided that the Administrative Agent may agree to an extension thereof or (y) immediately in connection with the applicable step(s) of the Permitted Reorganization) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a First Priority Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that, the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Borrowers Designated Company shall otherwise take such commercially reasonable actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on against such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Restricted Subsidiary after the Closing Date (other than (x) an Excluded Collateral Subsidiary and (y) a Securitization Entity) or any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Loan Party after by operation of the Closing Dateprovisions of Section 5.11(d) or the definition of Permitted Reorganization, promptly (and in any event within 60 (x) thirty (30) days after such Person person becomes a SubsidiaryRestricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d); provided that the Administrative Agent may agree to an extension of such time period or (y) immediately in connection with the applicable step(s) of the Permitted Reorganization) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary owned by such a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, cause any such new Restricted Subsidiary that is a Wholly Owned Subsidiary (other than, subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable 972172.01-CHISR01A - MSW discretion), in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement agreements to the applicable Collateral Security Documents (including the Security Agreement)in each case, substantially in the form annexed thereto, thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, subject to the Anti-Dilution Requirement, execute a security agreement such other Security Documents (or joinder agreements) to the extent possible under and compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien Liens created by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, but subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(bparagraph (b) shall not include any apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Foreign Lien on such Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary that is an Excluded a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary by reason of clauses (bbut only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), (d)y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (f) or (g) other than any of the definition foregoing entered into with any Company or Affiliate of Excluded any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause paragraph (1b) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (Aany Company listed on Schedule 5.11(b) voting stock to the extent any applicable Requirement of any Subsidiary that is Law prohibits it from becoming a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)Loan Party.
(c) Promptly Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within 60 sixty (60) days of the acquisition thereofthereof (or immediately in connection with the applicable step(s) of the Permitted Reorganization), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15 million as additional security for the Obligations 10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Such Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid valid, perfected and enforceable perfected First Priority Liens subject only to Liens permitted hereunderPermitted Liens. The Subject to the terms of the Intercreditor 972172.01-CHISR01A - MSW Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title PolicyPolicy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) The foregoing shall If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) Loan Parties because they are Excluded Collateral Subsidiaries comprise in the reasonable judgment aggregate more than 7.5% of the Administrative AgentConsolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the cost Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of creating the Permitted Reorganization), cause one or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect more of such assets shall Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be excessive in view true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the benefits Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to be obtained by the Lenders therefrom or (ii) terms of the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granteddefinition thereof, in which case event the Borrowers Guarantee by such Restricted Subsidiary shall use their commercially reasonable efforts to obtain such approval, unless be released in accordance with Section 7.09 and the Administrative Collateral Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or release the Collateral Documentspledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(f) Notwithstanding the foregoing provisions any other provision of this Section 6.11 or anything in this Agreement or any other Loan Document 5.11 to the contrary, Liens required in no event shall this Section 5.11 obligate any Loan Party to be granted from time xxxxx x Xxxx to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or on any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessExcluded Property.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of this Section 6.11 5.11 and Section 6.13(b)the Security Documents, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) ), at the written request of the Collateral Agent, (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) (i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) created or (g) of acquired after the definition of Excluded Subsidiary Closing Date and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b); provided that , if, in the exception set forth in case of either clause (1) with respect to Equity Interests or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (gsuccessor provision) of the definition Code, which investment would or could reasonably be expected to trigger an increase in the net income of Excluded a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code, as reasonably determined by the Borrower; provided that this sentence exception shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 6566% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) Mortgage on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 1.0 million, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.13(b)5.11, with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Security Documents but is not so subject, promptly (and in any event within 60 30 days after the acquisition thereof) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunderPermitted Collateral Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrowers Borrower shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired properties.
(b) With Subject to the provisions of the Security Agreement with respect to Material Foreign Subsidiaries (as defined in the Security Agreement), with respect to any Person person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 30 days after such Person person becomes a Subsidiary) )
(i) deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by such Loan PartySubsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, thereto or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws laws of such Foreign Subsidiary’s 's jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, Agent pursuant to clause (i) of this Section 6.11(b5.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses created or acquired after the Closing Date and the Intercompany Notes referred to in clause (b), (d), (f) or (gi) of the definition of this Section 5.11(b) shall not include any Excluded Subsidiary Intercompany Notes and (2) no Excluded Subsidiary or Unrestricted Foreign Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b5.11(b), if, in the case of either clause (1) or (2), doing so would constitute an investment of earnings in United States property under Section 956 (or a successor provision) of the Code, which investment would or could reasonably be expected to trigger an increase in the net income of a United States shareholder of such Subsidiary pursuant to Section 951 (or a successor provision) of the Code (assuming such Subsidiary had positive income and earnings and profits at all applicable times); provided that the this exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock Voting Stock of any Subsidiary that which is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) directly held by any Subsidiary Guarantor representing not more than 65% of the total voting power of all outstanding voting stock Voting Stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock Voting Stock of any such SubsidiarySubsidiary directly held by any Subsidiary Guarantor, except that any such Equity Interests constituting “"stock entitled to vote” " within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock Voting Stock for purposes of this Section 6.11(b5.11(b).
(c) Promptly grant to the Collateral Agent, within 60 30 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent Mortgage on (a “Mortgage”i) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million 500,000, and (ii) unless the Collateral Agent otherwise consents, each leased Real Property of such Loan Party which lease individually has a fair market value of at least $500,000, in each case, as additional security for the Secured Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Collateral Liens permitted hereunderor other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and Survey, a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require , such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary in order for the creation owner or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment holder of the Administrative Agent, fee or leasehold interest constituting such Mortgaged Property to grant the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained Lien contemplated by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required Mortgage with respect to such assets). In additionMortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called "gap" indemnification) as shall be required to induce the foregoing will not require actions under this Section 6.11 Title Company to issue the Title Policies, evidence reasonably acceptable to the Collateral Agent of payment by a Person Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies, copies of all Leases in which Borrower or any Subsidiary holds the lessor's interest or other agreements relating to possessory interests, if any, and to the extent that such action would (a) go beyond the corporate or other powers any of the Person concerned (foregoing affect any Mortgaged Property, such agreements shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and then only as such corporate or other power cannot attornment agreement, and shall otherwise be modified or excluded acceptable to allow such action) or (b) unavoidably result in material issues of director’s personal liabilitythe Collateral Agent, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documentseach Mortgaged Property).
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtedness.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 the terms of the Security Documents and Section 6.13(b3.18, Section 4.01(k), Section 5.11 and Section 5.15, with respect to any personal property created or acquired after the Closing Date by any Loan Credit Party that constitutes “Collateral” under any of the Security Documents or is intended to be subject to the Lien Liens created by any of the Collateral Documents Security Document but is not so subjectsubject to a Lien thereunder, promptly (and but in any event subject to the terms, conditions and limitations thereunder, within 60 90 days after the acquisition thereof) or formation thereof (or such longer period as the Administrative Agent may approve in each case in its reasonable discretion), (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Security Documents or such other New York law governed documents (or, in the case of a Credit Party incorporated or otherwise organized under the laws of any jurisdiction other than the United States, any state thereof or the District of Columbia, and joined as such at the Borrower’s sole discretion, under the laws of such other jurisdiction, documents governed by the laws of such Credit Party’s jurisdiction of incorporation, establishment or organization) as the Administrative Agent or the Collateral Agent shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien under applicable U.S. state and federal law (or, solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary) on such property Collateral subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions reasonably necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable LawU.S. state and federal law (or, including solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary), including, in the case of Domestic Subsidiaries that are Guarantors, the filing of financing statements and Intellectual Property security agreements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. The Borrowers Borrower and the other Credit Parties shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent (or its non-fiduciary agent or designee pursuant to any Intercreditor Agreement) such New York law (or, solely with respect to any Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder, the applicable laws of the jurisdiction of organization of such Excluded Subsidiary in accordance with the last paragraph of Section 5.10(b)) governed documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Security Documents on such after-acquired propertiesCollateral.
(b) With respect Subject to any Person the terms of the Security Documents and Section 5.15, upon the formation or acquisition of, or the re-designation of an Unrestricted Subsidiary as, a Restricted Subsidiary that is a Wholly Owned Restricted Subsidiary (other than any Excluded Subsidiary) after the Closing Date (other than a merger Subsidiary formed in connection with a Permitted Acquisition so long as such merger Subsidiary is merged out of existence pursuant to such Permitted Acquisition or becomes otherwise merged out of existence or dissolved within 90 days of its formation (or such later date as permitted by the Administrative Agent in its reasonable discretion)), upon any Excluded Subsidiary ceasing to constitute an Excluded Subsidiary (as reasonably determined by the Borrower) or upon Borrower’s determination (in its sole discretion) that an Excluded Subsidiary shall be joined as a direct Guarantor, within 90 days after such formation, acquisition, designation, determination or cessation (or such longer period as the Administrative Agent may approve in each case in its reasonable discretion), the Borrower shall:
(i) if such Subsidiary is a Wholly Owned Restricted Subsidiary of a Loan Domestic Subsidiary that is a Credit Party after the Closing Date, promptly (or of a Foreign Subsidiary that is a Credit Party and in any event within 60 days after such Person becomes a Subsidiary) (i) whose jurisdiction of organization the following is customary in similar financing transactions, deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Wholly Owned Restricted Subsidiary owned by that constitute Collateral and that are certificated (and that, in the case of any such Loan Wholly Owned Restricted Subsidiary of a U.S. Credit Party, are “certificated securities” (as defined in Article 8 of the UCC)), together with undated stock Equity Interest powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Wholly Owned Restricted Subsidiary to any Loan Credit Party required to be delivered pursuant to the Security Agreement or other applicable Security Document and not previously so delivered, together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Credit Party (in each caseor Additional Guarantor, with respect as applicable, and all other Collateral that is required to Foreign Subsidiaries, be delivered pursuant to the extent Security Agreements or other applicable Security Document and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and not previously so delivered; and
(ii) cause any such new Wholly Owned Restricted Subsidiary (except Excluded Subsidiaries (other than any Excluded Subsidiary the Borrower elects in its sole discretion to join as a Guarantor in accordance with the last paragraph of this Section 5.10(b))), (A) to execute and deliver a joinder agreement reasonably acceptable to the Administrative Agent Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and or, to the extent the Borrower elects to join such Subsidiary as a co-borrower, to become a Borrower in compliance with Section 2.23 hereof, (if such subsidiary is a Domestic Subsidiary) a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of or (if such Subsidiary is a Foreign Subsidiary, execute Subsidiary that is an Excluded Subsidiary the Borrower elects in its sole discretion to join as a security agreement compatible Guarantor in accordance with the Laws last paragraph of this Section 5.10(b)) such Foreign Subsidiary’s security documentation as may be customary in its jurisdiction in form of organization, as reasonably agreed between the Borrower and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created on the Collateral (which shall exclude Excluded Property and be subject to the limitations set forth herein and the applicable Security Documents and, as applicable, the Agreed Security Principles) by the applicable Collateral Security Documents (including the Security Agreement) to be duly perfected under U.S. federal and applicable state law (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder in accordance with the last paragraph of this Section 5.10(b), the applicable laws of the jurisdiction of organization of such Foreign Subsidiary) to the extent required by such agreement agreements in accordance with all applicable Requirements of Law, (or, solely with respect to any Foreign Subsidiary that is an Excluded Subsidiary that the Borrower elects, in its sole discretion, to join as a Guarantor hereunder in accordance with the last paragraph of this Section 5.10(b), the applicable laws of the jurisdiction of organization of such Foreign Subsidiary), including (in the case of a Domestic Subsidiary that is a Guarantor) the filing of financing statements in such U.S. jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent and Intellectual Property security agreements in the United States Patent and Trademark Office or the United States Copyright Office as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, ; provided that (1x) the no pledge of Excluded Equity Interests shall be required and (y) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), mortgage, deed of trust, deed to secure debt, leasehold mortgages, landlord waivers or collateral access agreements shall be required to be delivered entered into under the laws of any jurisdiction. Notwithstanding anything to the Collateral Agentcontrary, or on which a Lien is required in the event that the Borrower shall at any time desire to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of join a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b)as a Guarantor, (d), (f) or (g) of the definition of Excluded Subsidiary Borrower and (2) no Excluded Subsidiary or Unrestricted Subsidiary the Administrative Agent shall be required reasonably negotiate in good faith to take the actions specified in clause (ii) of amend this Section 6.11(b); provided that the exception set forth in clause (1) with respect Agreement to Equity Interests of a subject guarantee and collateral requirements vis-à-vis any such Foreign Subsidiary that is an Excluded Subsidiary by reason that Borrower elects (in its sole discretion) to join as a Guarantor, to “agreed security principles” that are customary for the jurisdiction of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock organization of such Foreign Subsidiary and for facilities substantially similar to those provided for in this Credit Agreement (B) 100% of the Equity Interests not constituting voting stock of any such Subsidiary“Agreed Security Principles”), except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).
(c) Promptly grant to the Collateral Agent, within 60 days of the acquisition thereof, a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on each parcel of Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value of at least $15 million as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxesguarantee and collateral requirements hereunder and under the other Loan Documents shall, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy, a Survey and local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage).
(d) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i) in the reasonable judgment of the Administrative Agent, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required with respect to such assets). In additionForeign Subsidiary Guarantor, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 shall be subject in all cases to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date and, to the extent appropriate in the applicable jurisdiction, as agreed between the Collateral Agent and Xxxxxxx. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such IndebtednessAgreed Security Principles.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 5.10 and Section 6.13(b)except to the extent Lender, in its sole discretion, otherwise determines, with respect to any property assets acquired after the Closing Date by Borrower or any other Loan Party that is are intended to be subject to the Lien created by any of the Collateral Security Documents but is that are not so subject, and with respect to any assets held by Borrower or any other Loan Party on the Closing Date not made subject to a Lien created by any of the Security Documents but of a type intended to be subject to the Lien created by the applicable Security Documents, promptly (and in any event within 60 30 days after the acquisition thereof) thereof or upon Lender's request): (i) execute and deliver to the Administrative Agent and the Collateral Agent Lender such amendments or supplements to the relevant Collateral Security Documents or such other documents (including, without limitation, a Mortgage or Collateral Assignment of Lease) as the Administrative Agent or the Collateral Agent Lender shall reasonably deem necessary or advisable to grant to the Collateral AgentLender, for its benefit and for the benefit of the other Secured Partiesbenefit, a Lien on such property properties or assets (including using its reasonable efforts to deliver a Landlord Lien Waiver and Access Agreement with respect to each Real Property located in the United States in which a Loan Party holds the tenant's interest thereunder and where the Loan Parties maintain Collateral having a value in excess of $1.0 million (other than with respect to the MacArthur Sublease) or which Real Property is operationally significant to such Loan Party's business as reasonably determined by Lender), subject to no Liens other than Liens permitted hereunderPermitted Liens, and (ii) take all commercially reasonable actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Security Document in accordance with all applicable Requirements of Law, including the filing of a Mortgage or Collateral Assignment of Lease and financing statements in such jurisdictions as may be reasonably requested by Lender. Borrower shall otherwise take such actions and execute and/or deliver to Lender such documents as Lender shall require to confirm the validity, perfection and priority of the Lien of Security Documents against such after-acquired properties or assets, and such assets held on the Closing Date not made subject to a Lien created by any of the Security Documents. For purposes of this Section 5.10(a), Lender and Borrower agree that the Lien referred to in this Section 5.10
(a) is intended to cover all assets and properties of Borrower and all other Loan Parties whether now owned or hereafter acquired, except for such properties or assets which are expressly excluded pursuant to the terms of this Agreement.
(b) For any person that is a Wholly Owned Subsidiary of Parent or any of its Subsidiaries that are listed on Schedule 5.10(b) (a "SECTION 5.10(b) LISTED SUBSIDIARY"), and any person that becomes a Wholly Owned Subsidiary of Borrower or any of its Subsidiaries after the Closing Date (a "NEW WHOLLY OWNED SUBSIDIARY"), promptly (and in any event (x) in the case of a New Wholly Owned Subsidiary, no later than 30 days after each such person becomes a New Wholly Owned Subsidiary, and (y) in the case of each Section 5.10(b) Listed Subsidiary or a New Wholly Owned Subsidiary that is required to become a Guarantor, or the stock or assets of which are required to be pledged, pursuant to clauses (i) and (ii) immediately below, no later than 30 days following the Closing Date), cause such Subsidiary (i) to become a Guarantor and deliver to Lender the certificates representing the Equity Interests of such Subsidiary (provided that, in no event shall the stock of any such Subsidiary be required to be pledged if such pledge is illegal under applicable law and no reasonable alternative structure can be devised having substantially the same effect as such pledge that would not be illegal under applicable law), together with undated stock powers executed and delivered in blank by a duly authorized officer of such Subsidiary's parent, as the case may be, and all Intercompany Notes owing from such Subsidiary to any Loan Party; and (ii) (A) to execute a Joinder Agreement or such comparable documentation, in form and substance reasonably satisfactory to Lender, and (B) to take all actions reasonably necessary or advisable to cause the Lien created by each Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by Lender (provided that any such Subsidiary shall not be required to comply with clause (ii)(A) and (B) above if satisfying such requirements is illegal under applicable law and no reasonable alternative structure can be devised having substantially the Administrative Agent. The Borrowers shall otherwise take same effect as such commercially reasonable actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired propertiespledge that would not be illegal under applicable law).
(bc) With respect Notwithstanding anything to any Person that is or becomes a direct Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within 60 days after such Person becomes a Subsidiary) contrary contained herein:
(i) deliver to in the Collateral Agent the certificatescase of any (x) Section 5.10(b) Listed Subsidiary and New Wholly Owned Subsidiary that has not previously become a Guarantor and (y) other Non-Guarantor Subsidiary, if any, representing all 65% of the Equity Interests of any such Subsidiary owned by such Loan Party, together with undated stock powers or other appropriate instruments of transfer executed (and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) or, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, create a Lien on such Equity Interests and intercompany notes in favor of the Collateral Agent on behalf of the Secured Parties and (ii) cause any such new Subsidiary (A) to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Subsidiary Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, or, in the case of a Foreign Subsidiary, execute a security agreement compatible with the Laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected to the extent required by such agreement in accordance with all applicable Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) the Equity Interests required to be delivered to the Collateral Agent, or on which a Lien is required to be created, pursuant to clause (i) of this Section 6.11(b) shall not include any Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clauses (b), (d), (f) or (g) of the definition of Excluded Subsidiary and (2) no Excluded Subsidiary or Unrestricted Subsidiary shall be required to take the actions specified in clause (ii) of this Section 6.11(b); provided that the exception set forth in clause (1) with respect to Equity Interests of a Foreign Subsidiary that is an Excluded Subsidiary by reason of clause (g) of the definition of Excluded Subsidiary of this sentence shall not apply to (A) voting stock of any Subsidiary that is a first-tier controlled foreign corporation (as defined in Section 957(a) of the Code) representing 65% of the total voting power of all outstanding voting stock of such Subsidiary and (B) 100% of the Equity Interests not constituting voting stock of any such Domesticated Foreign Subsidiary, except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b).subject to a Lien or be required to be pledged under the applicable Loan Document except to the extent Lender, in its sole discretion, otherwise determines; and
(ii) notwithstanding clause (c)
(i) Promptly grant to immediately above and as of the Collateral Agentend of any fiscal quarter of Borrower:
(1) if the aggregate consolidated revenues of the Non-Guarantor Subsidiaries exceeds 10.0% of Borrower's consolidated revenues, then within 60 days of such date Borrower shall cause a sufficient number of the acquisition thereofNon-Guarantor Subsidiaries to become Guarantors hereunder so that, after giving pro forma effect to such action, the aggregate consolidated revenues of the Subsidiaries remaining as Non-Guarantor Subsidiaries is less than 10.0% of Borrower's consolidated revenues; or
(2) if the aggregate consolidated sum of the Non-Guarantor Subsidiaries' fixed assets, receivables and inventories exceeds 10.0% of the aggregate consolidated sum of Borrower's fixed assets, receivables and inventories (which fixed assets, receivables and inventories shall be computed after eliminating intercompany profit), then within 60 days of such date Borrower shall cause a security interest sufficient number of the Non-Guarantor Subsidiaries to become Guarantors hereunder so that, after giving pro forma effect to such action, the aggregate consolidated sum of fixed assets, receivables and inventories of the Subsidiaries remaining as Non-Guarantor Subsidiaries is less than 10.0% of the aggregate consolidated sum of Borrower's fixed assets, receivables and inventories. If the condition set forth in clause (ii)(1) or (ii)(2) above is established, Borrower shall, or shall cause the applicable Foreign Subsidiaries to, take all such further action and mortgage in a form reasonably satisfactory execute and deliver all such further agreements or documents as Lender deems necessary or advisable to receive the full benefits of the Guarantees and Security Documents to be entered into by such Foreign Subsidiaries to the Administrative Agent extent necessary to preclude the 10.0% thresholds set forth in the immediately preceding clauses (ii)(1) and Collateral Agent (a “Mortgage”ii)(2) on from being exceeded, except to the extent such actions, executions, or, deliveries are illegal under applicable law, and no reasonable alternative structure can be devised having substantially the same effect as such actions, executions, or deliveries that would not be illegal under applicable law.
(d) Upon the written request of Lender, each parcel Loan Party will promptly grant to Lender, within 30 days of such request, security interests and Mortgages in such owned or leased Real Property owned in fee by of such Loan Party located in the United States as is acquired or leased by such Loan Party after the Closing Date by Borrower or such Subsidiary and that, together with any improvements thereon, individually has a fair market value as determined in good faith by Lender in excess of at least $15 1.0 million or is otherwise material to the business operations of Borrower or such Subsidiary, as additional security for the Secured Obligations (unless (i) the subject property is already mortgaged to a third party to the extent permitted hereunderby Section 6.02 or (ii) if the encumbrancing of such leased Real Property requires the consent of any applicable lessor, where Borrower and its Subsidiaries have attempted in good faith, but are unable, to obtain such lessor's consent). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent Lender and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens permitted hereunderand such other Liens reasonably acceptable to Lender. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent Lender required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in fullfull by such Loan Party. Such Loan Party shall otherwise take such commercially reasonable actions and execute and/or deliver to the Collateral Agent Lender such documents as the Administrative Agent or the Collateral Agent Lender shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property within 30 days of the written request of Lender, including the following:
(including i) Mortgages encumbering each Mortgaged Real Property in favor of Lender, duly executed and acknowledged by the Loan Party that is the owner of or holder of an interest in such Mortgaged Real Property, and otherwise in form for recording in the recording office of each political subdivision where each such Mortgaged Real Property is situated, and such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Title PolicyLien under applicable law, a Survey and local counsel opinion (such UCC financing statements and fixture filings, all of which shall be in form and substance reasonably satisfactory to Lender, and any other instruments necessary to grant a mortgage lien under the Administrative Agent and the Collateral Agent) in respect laws of such Mortgage).any applicable jurisdiction;
(dii) The foregoing shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and to each Mortgaged Real Property for so long as which a Mortgage is obtained in accordance with clause (i) above, an Agreement and Estoppel Certificate executed by the applicable Loan Party and fee interest holder, and such other consents, approvals, amendments, supplements, memoranda of lease estoppels, tenant non-disturbance or subordination agreements or other instruments as shall reasonably be deemed necessary by Lender in order for the reasonable judgment owner or holder of the Administrative Agent, fee or leasehold interest constituting such Mortgaged Real Property to grant the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained Lien contemplated by the Lenders therefrom or (ii) the creation or perfection of such pledges or security interests would violate third party contracts or applicable Law (including any Law requiring the approval or consultation of any “works council” or similar entity before a security interest can be granted, in which case the Borrowers shall use their commercially reasonable efforts to obtain such approval, unless the Administrative Agent shall determine in its reasonable judgment that such pledge or security interest shall not be required Mortgage with respect to such assetsMortgaged Real Property;
(iii) with respect to each Mortgage, a policy of title insurance insuring the Lien of such Mortgage as a valid first mortgage Lien on the Real Property and fixtures described therein in an amount equal to 115% of the fair market value of the fee or leasehold interest, as applicable, of such Real Property which policies (each, a "TITLE POLICY") shall (A) be issued by the Title Company, (B) to the extent necessary, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to Lender, (C) contain a "tie-in" or "cluster" endorsement (if available under applicable law) (i.e., policies that insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount). In addition, the foregoing will (D) have been supplemented by such endorsements (or where such endorsements are not require actions under this Section 6.11 by a Person if and available, opinions of special counsel, architects or other professionals reasonably acceptable to Lender to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot opinions can be modified or excluded to allow such action) or (b) unavoidably result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance obtained at a cost that is reasonable with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets value of the Loan Parties on Real Property subject to such dateMortgage) where it reasonably determines, in consultation with the Borrowers, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, Liens required to be granted from time to time pursuant to Section 6.11 as shall be subject to exceptions and limitations set forth in the Collateral Documents as in effect on the Amendment Effective Date andrequested by Lender, to the extent appropriate such endorsements are available in the applicable jurisdictionjurisdiction (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien and so-called comprehensive coverage over covenants and restrictions), and (E) contain no exceptions to title other than exceptions for the Permitted Liens applicable to such Mortgaged Real Property and otherwise acceptable to Lender;
(iv) with respect to each Mortgaged Real Property for which a Mortgage is obtained in accordance with clause (i) above, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called "gap," "mechanics lien," and "owner's" indemnifications and affidavits) as agreed between shall be required to induce the Collateral Agent Title Company to issue the Title Policy/ies and Xxxxxxxendorsements contemplated in clause (iii) above;
(v) evidence reasonably acceptable to Lender of payment by Borrower of all Title Policy premiums, escrow, search and examination charges, and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to in clause (iii) above;
(vi) with respect to each Real Property or Mortgaged Real Property, copies of all Leases in which Borrower or any Subsidiary holds the lessor's interest or other agreements relating to possessory interests, if any. Notwithstanding To the extent any of the foregoing provisions affect any Mortgaged Real Property for which a Mortgage is obtained in accordance with clause (i) above, such agreement shall be subordinate to the Lien of this Section 6.11 the Mortgage to be recorded against such Mortgaged Real Property, either expressly by its terms or anything pursuant to a subordination, non-disturbance and attornment agreement, and shall otherwise be acceptable to Lender;
(vii) with respect to each Mortgaged Real Property for which a Mortgage is obtained in this Agreement accordance with clause (i) above, Borrower and each Subsidiary shall have made all notification, registrations and filings, to the extent required by, and in accordance with, all Requirements of Law; and
(viii) with respect to each Mortgaged Real Property for which a Mortgage is obtained in accordance with clause (i) above, an Officers' Certificate or other evidence reasonably satisfactory to Lender that as of the date thereof (A) there is no outstanding citation, violation or similar notice indicating that the Mortgaged Real Property contains conditions that are not in compliance in any material respect with local codes or ordinances relating to building or fire safety or structural soundness, (B) there has not occurred any taking or destruction of any Mortgaged Real Property and (C) there are no material disputes regarding boundary lines, location, encroachment or possession of such Mortgaged Real Property, and to the best knowledge of Borrower or any other Loan Document Subsidiary that is the owner of or holder of an interest in such Mortgaged Real Property, no state of facts exist that could give rise to the contrary, any Subsidiary of the Company that Guarantees the Senior Subordinated Debt or the Senior Unsecured Debt shall be a Guarantor hereunder for so long as it Guarantees such Indebtednessclaim.
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